Application of a variation that the PWC didn't ask for
I'm hoping that someone may have insight to my situation.
I have just lost an appeal against two variations - one was a notional income (asset) variation and the other was a diversion of income variation (additional pension contributions).
There is a lot of complexity in the appeals themselves and I could argue specifics for each, but the salient issue I raise here is that it appears that the PWC didn't actually ask for the asset variation. She states in one letter to the CMS :- "I did not ask for the money from sale of property or inheritance or assets to be taken in to account as part of the maintenance assessment. I highlighted these to demonstrate that he already has adequate provision for his retirement both from a capital point of view and on-going income". I.e. it appears that her interest in my assets is limited to a consideration of her diversion of income request, and not a request for a separate asset variation. However I can understand that someone reading a request for 'assets to be considered' could - even perhaps in all honesty - misconstrue the intent.
So anyway in the tribunal hearing I pointed out that the PWC hadn't in fact asked for an asset variation, and the judge responded that the CMS are able to apply one independently without request from the PWC. After the tribunal hearing I responded (and my email was accepted) saying it is important to establish if the CMS decided to apply one themselves or whether they actually misunderstood the original variation request. My argument of course being that if the asset variation was applied as a result of misunderstanding the intent of the PWC, then it was applied in error and should not stand. If however it was a separate decision taken independently in the absence of a request from the PWC, then of course the reasons for this should be explained to me. I am convinced that it was a misunderstanding - the PWC's own statement testifies that she didn't ask for one originally, however the first thing I knew of the variation was the notification saying the CMS have been asked to look at a variation on the grounds of notional income.
Anyway my comments above were supposed to be sent to CMS for their comment, but the tribunal's decision was to uphold the variation. At this moment I don't even know if the CMS have commented on my statements above to help answer this question. Maybe they have I don't know, but they didn't even send a rep to the hearing itself.
So does anyone know what the rules are for the CMS independently applying a variation in the absence of a request for one ?
as far as am aware a receiving parent would have to ask for a variation, then CMS take into account. there is a gov report here: https://commonslibrary.parliament.uk/research-briefings/cbp-7773/
currently there will be changes, when CMS do annual review for a paying parent, all the variation information will be applied automatically at annual review time. They will be asking investment firms to release information if paying parent is holding shares and other investments, and will also ask the Motor insurers Bureau to release information.
Thanks for that.
However I spoke to the CMS today and they told me that if a PWC asks for an 'additional income' variation - whatever the grounds - then all types of additional income can be looked at. Especially if the FIU conduct an investigation which happened in my case.
According to the Decision Maker's Guide here :- https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1102342/volume-3-variations.pdf
para 27003 states that categories of 'additional income' variation include unearned income (eg. from property), assets exceeding a prescribed value, earned income (I think this includes benefits etc. in the income figure), and diversion of income (eg. excessive pension contributions).
para 27010 dealing with who can apply for a variation lists the PWC and NRP but not the CMS themselves
para 27015 states that the applicant must state the grounds of the variation (i.e. specify which category above applies). This would seem to suggest (but doesn't explicitly say) that in response the CMS should only look at those grounds
However this guide is not binding (as the judge in the tribunal informed me). So I am currently looking through the regs and also the Child Support Act 1991 to see if it states anywhere 1) Precisely who is able to initiate a variation (i.e. if this includes the CMS themselves), and 2) If the subsequent action is limited to the specific grounds stated or not