The Child Support (Management of Payments and Arrears) Regulations 2009

In these Regulations—

• “the 1991 Act” means the Child Support Act 1991;

• “a 1993 scheme case” means a case in respect of which the provisions of the Child Support, Pensions and Social Security Act 2000 M1 have not been brought into force in accordance with article 3 of the Child Support, Pensions and Social Security Act 2000 (Commencement No. 12) Order 2003 M2;

• F2“a 2003 scheme case” means a case in respect of which the provisions of the Child Support, Pensions and Social Security Act 2000 have been brought into force in accordance with article 3 of the Child Support, Pensions and Social Security Act 2000 (Commencement No.12) Order 2003;

• “a 2012 scheme case” means a case in respect of which the provisions of the Child Maintenance and Other Payments Act 2008 have been brought into force in accordance with article 2 of the Child Maintenance and Other Payments Act 2008 (Commencement No.10 and Transitional Provisions) Order 2012, article 2 of the Child Maintenance and Other Payments Act 2008 (Commencement No.11 and Transitional Provisions) Order 2013 or article 2 of the Child Maintenance and Other Payments Act 2008 (Commencement No.12 and Savings Provisions) and the Welfare Reform Act 2012 (Commencement No.15) Order 2013;

• “child in Scotland” means a child who has made an application for a maintenance calculation under section 7 of the 1991 Act;

• F3“Child Maintenance Service system” means the computer system used by the Child Maintenance Service which administers a 2012 scheme case or arrears from a 1993 or 2003 scheme case;

• “Child Support Agency system” means the computer system used by the Child Support Agency which administers a 1993 or 2003 scheme case;

• “the Decisions and Appeals Regulations” means the Social Security and Child Support (Decisions and Appeals) Regulations 1999 M3;

• F4“electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000;

• “non-resident parent” includes a person treated as a non-resident parent by virtue of regulations made under section 42 of the 1991 Act;

• “relevant person” means—

  1. (a)

     a person with care;

  2. (b)

     a non-resident parent;

  3. (c)

     where the application for a maintenance calculation is made by a child under section 7 of the 1991 Act, that child,

  in respect of whom a maintenance calculation is or has been in force.

In the application of these Regulations to a 1993 scheme case, any reference to expressions in the 1991 Act (including “non-resident parent” and “maintenance calculation”) or to regulations made under that Act are to be read with the necessary modifications.

This regulation applies to a case where—

Where the F2Secretary of State is considering taking action with regard to a case falling within paragraph (1) the Secretary of State must serve a notice on the non-resident parent.

The notice must—

Where a notice has been served under paragraph (2), no duty to serve a further notice under that paragraph arises in relation to further arrears unless those further arrears have arisen after an intervening continuous period of not less than 12 weeks during the course of which all payments of child support maintenance due from the non-resident parent have been paid on time in accordance with regulations made under section 29 of the 1991 Act.

This paragraph applies to a case where—

Where paragraph (1) applies to a case, the Secretary of State may only start making arrangements for collection under section 29 of the 1991 Act or arrangements for enforcement under the 1991 Act (or both) where the non-resident parent has been given a notice, within the preceding 12 month period, setting out that the Secretary of State will consider making such arrangements where there is a failure to make one or more payments of child support maintenance due.

The circumstances prescribed for the purposes of section 41C(1)(a) of the 1991 Act, in which the F1Secretary of State may set off liabilities to pay child support maintenance, are set out in paragraph (2).

The Secretary of State may set off the liability to pay child support maintenance of one person (“A”) against the liability to pay child support maintenance of another person (“B”) where—

There shall be no set off in relation to any amount which if paid could be retained under section 41 of the 1991 Act.

The circumstances prescribed for the purposes of section 41C(1)(b) of the 1991 Act, in which the F1Secretary of State may set off a payment against a person's liability to pay child support maintenance, are set out in paragraph (2).

The Secretary of State may set off a payment against a non-resident parent's liability to pay child support maintenance where—

A payment is of a prescribed description for the purposes of section 41C(1)(b) of the 1991 Act if it was made by the non-resident parent in respect of—

In setting off a person's liability for child support maintenance under this Part, the F1Secretary of State may apply the amount to be set off to reduce any arrears of child support maintenance due under any current maintenance calculation, or any previous maintenance calculation made in respect of the same relevant persons.

Where there are no arrears of child support maintenance due, or an amount remains to be set off after the application of paragraph (1), the F2Secretary of State may adjust the amount payable in relation to the current maintenance calculation by such amount as the Secretary of State considers appropriate in all the circumstances of the case, having regard in particular to—

An adjustment of the amount payable in relation to the current maintenance calculation under paragraph (2) may reduce the amount payable to nil.

Where for any reason, including the retrospective effect of a maintenance calculation, there has been an overpayment of child support maintenance, the F1Secretary of State may apply the amount overpaid to reduce any arrears of child support maintenance due under any previous maintenance calculation in respect of the same relevant persons.

Where there is no previous maintenance calculation, or an amount of the overpayment remains after the application of paragraph (1), the F2Secretary of State may adjust the amount payable in relation to the current maintenance calculation by such amount as the Secretary of State considers appropriate in all the circumstances of the case, having regard in particular to—

An adjustment of the amount payable in relation to the current maintenance calculation under paragraph (2) may reduce the amount payable to nil.

Where there has been a voluntary payment M1 the F1Secretary of State may apply the amount of the voluntary payment to reduce any arrears of child support maintenance due under any previous maintenance calculation in respect of the same relevant persons.

Where there is no previous maintenance calculation, or an amount of the voluntary payment remains after the application of paragraph (1), the F2Secretary of State may adjust the amount payable in relation to the current maintenance calculation by such amount as the Secretary of State considers appropriate in all the circumstances of the case, having regard in particular to—

An adjustment of the amount payable in relation to the current maintenance calculation under paragraph (2) may reduce the amount payable to nil.

This Part applies in relation to the estate of a person who dies on or after the day on which these Regulations come into force.

In this Part, “child support maintenance” means child support maintenance for the collection of which the F1Secretary of State is authorised to make arrangements.

The deceased's executor or administrator has the same rights, subject to the same procedures and time limits, as the deceased person had immediately before death to institute, continue or withdraw any proceedings under the 1991 Act, whether by appeal or otherwise.

F1...

The F1Secretary of State may disclose information held for the purposes of the 1991 Act to the deceased's executor or administrator where, in the opinion of the Secretary of State, such information is essential to enable the executor or administrator to administer the deceased's estate, including, where necessary, to institute, continue or withdraw proceedings under the 1991 Act.

Any application for information under this regulation shall be made to the Secretary of State in writing setting out the reasons for the application.

Except where a person gives written permission to the Secretary of State that the information mentioned in sub-paragraphs (a) and (b) in relation to that person may be disclosed to other persons, any information disclosed under paragraph (1) must not contain—

separate applications for a maintenance calculation; or

one application but would, if recovered, be payable to different persons,

The Secretary of State may not exercise the power under section 41D(1) of the 1991 Act without the appropriate consent (as provided for in subsections (5) to (7) of section 41D), unless one of the following conditions applies—

Where the consent of any appropriate person is required, the Secretary of State must make available such information and guidance as the Secretary of State thinks appropriate for the purpose of helping that person decide whether to give that consent.

Where the Secretary of State proposes to exercise the power under section 41D(1) of the 1991 Act, the Secretary of State must prepare a written agreement.

The agreement must—

The Secretary of State must send the non-resident parent and, where applicable, the appropriate person, a copy of the agreement.

The agreement does not take effect until—

Unless the non-resident parent fails to comply with the terms of the agreement, the Secretary of State must not take action to recover any of the arrears to which the agreement relates.

Where the non-resident parent has made full payment in accordance with the agreement all remaining liability in respect of the arrears of child support maintenance to which the agreement relates is extinguished.

Where the non-resident parent fails to make any payment or only makes part payment or otherwise fails to adhere to the terms of the agreement, the non-resident parent remains liable to pay the full amount of any outstanding arrears to which the agreement relates and the Secretary of State may arrange to recover any of those outstanding arrears in accordance with the 1991 Act.

Nothing in these Regulations prevents the Secretary of State from entering into a new agreement with the non-resident parent in respect of any of the arrears to which the previous agreement relates provided that the new agreement complies with the requirements set out in regulation 13D.

Where the Secretary of State enters into a new agreement with the non-resident parent in respect of any of the arrears to which a previous agreement related, the previous agreement ceases to have effect on the coming into effect of that new agreement.

separate applications for a maintenance calculation; or

one application, but would, if recovered, be payable to different persons,

the person with care has requested under section 4(5) of that Act that the Secretary of State ceases to act in respect of the arrears;

a child in Scotland has requested under section 7(6) of that Act that the Secretary of State ceases to act in respect of the arrears;

the person with care, or (in Scotland) the child, has died;

the non-resident parent died before 25 January 2010 or there is no further action that can be taken with regard to recovery of the arrears from the non-resident parent’s estate under Part 4;

the arrears relate to liability for child support maintenance for any period in respect of which an interim maintenance assessment was in force between 5 April 1993 and 18 April 1995; F2...

the non-resident parent has been informed by the Secretary of State that no further action would ever be taken to recover those arrears.

the arrears relate to liability for child support maintenance accrued under a 1993 or 2003 scheme case and the non-resident parent has failed to make any payments of child support maintenance within the 3 month period which precedes the date of the written notice sent by the Secretary of State under regulation 13H(1), or, where the arrears fall within regulations 13K(1)(a), (b) or (d), within the 3 month period which precedes the date of the decision of the Secretary of State under section 41E(1) of the 1991 Act;

the arrears relate to liability for child support maintenance accrued under a 1993 or 2003 scheme case which has transferred from the Child Support Agency system to the Child Maintenance Service system and the non-resident parent has failed to make any payments of child support maintenance within the 3 month period which precedes the date of the written notice sent by the Secretary of State under regulation 13H(1), or, where the arrears fall within regulations 13K(2)(a) or (b), within the 3 month period which precedes the date of the decision of the Secretary of State under section 41E(1) of the 1991 Act; F4...

the arrears relate to sequestrated debt in Scotland for a 1993, 2003 or 2012 scheme case once the trustee administering the sequestration has confirmed that the period of sequestration has ended; F5...

the non-resident parent has been discharged under section 184 of the Bankruptcy (Scotland) Act 2016 (protected trust deed: discharge of debtor) from liability for the arrearsF7;

the arrears relate to liability for child support maintenance accrued under a 2012 scheme case where all of the following apply—

the arrears relate to liability for child support maintenance accrued under a 2012 scheme case where all of the following apply—

Where the Secretary of State is considering exercising the powers under section 41E(1) of the 1991 Act, the Secretary of State must send written notice to the person with care or, where relevant, a child in Scotland and the non-resident parent.

Where the arrears fall within regulation 13(K)(1)(c) or (e) or (2)(c) the requirement under paragraph (1) to send written notice to the non-resident parent only applies where the Secretary of State receives written representations within the period of 60 days beginning with the date the notice is received by the person with care or, where relevant, a child in Scotland.

The requirement in paragraph (1) does not apply where the person in question cannot be traced or has died F3or the arrears fall within regulations 13G(i)F4, 13G(j), F513G(k), 13G(l), 13K(1)(a), 13K(1)(b), 13K(1)(d), 13K(2)(a) or 13K(2)(b).

The notice must—

F13Subject to paragraph 4A, if no representations are received by the Secretary of State within 30 days of the notice being received by the person with care or, where relevant, a child in Scotland and the non-resident parent, the Secretary of State may make the decision to extinguish the arrears.

Where any of the conditions of write off mentioned in regulation 13K(1)(c) or (e) or (2)(c) apply, if no written representations are received by the Secretary of State within the period of 60 days beginning with the date the notice is received by the person with care or, where relevant, a child in Scotland, the Secretary of State may make the decision to extinguish the arrears.

For the purposes of this regulation, where the Secretary of State sends any written notice by post to a person’s last known or notified F15postal address that document is treated as having been received by that person on the second day following the day on which it is posted.

For the purposes of this regulation, where the Secretary of State sends any written notification by electronic communication to a person’s last known or notified address for electronic communication, that document is treated as having been received by that person at the end of the first day after the day it was sent.

On making a decision under section 41E(1) of the 1991 Act, the Secretary of State must send written notification to the non-resident parent and the person with care or, where relevant, a child in Scotland, of that decision.

The requirement in paragraph (1) does not apply where the person in question cannot be traced or has died F2or where the arrears fall within F3regulations 13G(k) or (l) or 13K(1)(a) or (2)(a) or where the arrears fall within regulation 13K(1)(c) or (e) or (2)(c) and the Secretary of State has not received written representations by postF4, or electronic communication in accordance with Schedule 1, from the person with care or, where relevant, a child in Scotland, within the 60 day period referred to in regulation 13H(3)(da).

The arrears mentioned above are—

The arrears mentioned above are—

Where before these Regulations come into force, an adjustment has been made under regulation 10(1) of the AIMA Regulations in a 1993 scheme case, regulations 10(2) and (3) and 11 to 17 M1 of those Regulations continue to apply to that case for the purposes of—

Where before these Regulations come into force, an adjustment has been made under regulation 10(1) or (3A) M2 of the AIMA Regulations in a case other than a 1993 scheme case, regulation 30A M3 of the Decisions and Appeals Regulations continues to apply to that case for the purposes of making and determining any appeal against the adjustment.

Where these Regulations require or permit a person to carry out an action referred to in sub-paragraph (2)—

The actions are—

the electronic communication, its form, and the electronic address for the communication, have been agreed with the recipient for a purpose in paragraph 1(2);

the electronic communication is sent in the agreed form to the agreed electronic address for the agreed purpose;

the electronic communication is—

An agreed electronic communication is presumed, unless the contrary is proved, to have resulted in delivery if—

An agreed electronic communication is presumed, unless the contrary is proved, not to have resulted in delivery if—

The time and date of receipt of an agreed electronic communication is presumed to be that recorded on an official computer system, unless the contrary is proved.

The identity of the sender and the recipient of an electronic communication is presumed to be the persons whose names are recorded on an official computer system, unless the contrary is proved.

An electronic communication sent on behalf of another person (“P”) is presumed to have been delivered by P unless P proves that it was delivered without P’s knowledge.