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@bill337 Thanks for the above. My son will join the Facebook group. Dealing with the CMS is like entering a black hole. Information on the DWPs own website ' Guidance: How your child's living arrangements affect child maintenance' which makes clear in cases of equal care there that the paying parent does not have to pay any child maintenance. In submitting his request for a mandatory review, my son thought that quoting the DWP guidance would be sufficient. How wrong he was. As his review was denied on the grounds that CMS use receipt of child benefit to determine primary carer role, we did some digging and found the CMS bases decisions on financial liability on who receives child benefit 'Child Support Maintenance Calculation Regulations 2012'
https://www.legislation.gov.uk/uksi/2012/2677/regulation/50
(3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.
This applies to cases of equal care. So it is incumbent upon the non receiving parent (paying parent) to provide concrete proof to challenge the above assumption. To my mind, the CMS is therefore biased in favour of the parent with care - invariably the mother. Could the fact that 70% of staff at CMS are female be at all relevant?
My son will now go down the tribunal route and challenge the CMS's decision. Will post here on the outcome of that process which can take up to six months.
Hi @Systematic Kid,
Did your son get an outcome on this? I’m in the exact same situation and wondered what happened in yours/his case and if you had any tips/tricks to help?
The CMS are terrible to deal with and currently going through it with them!
Hi @LakingJ
Sorry for not replying earlier. To date, we have had two first tier tribunal dates cancelled - one the day before the appeal was to take place and the other two days before the appeal. We are waiting for the court to provide a third date. So far we have been waiting eight months since lodging an intent to appeal. Once the appeal has been heard, I will update on the forum.
My son has had many phone conversations with the CMS prior to them concluding with their in-house appeals procedure that their decision on him being liable for maintenance stood. My so referred to the following link many times in his conversations and got nowhere.
If you scroll down, you will see:
Q: What happens if the day-to-day care of a child is equal between a paying parent and a receiving parent?
A: In this situation, the paying parent does not have to pay any child maintenance for that child.
You would think this is enough to settle any dispute about payment liability if you have court ordered equal care which my son has. However, the CMS base their decisions on maintenance liability on the following.
The Child Support Maintenance Calculation Regulations 2012 Section 50
https://www.legislation.gov.uk/uksi/2012/2677/regulation/50
Strangely, in none of the many phone conversations was reference made to Section 50 which is very strange given its importance on CMS decisions.
The 2012 regulations say that, "where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person." and, by default, liable to pay maintenance.
in order not to be liable for maintenance payments, the paying parent must prove he or she is a special case.
"For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant."
So the CMS assume maintenance liability on the basis of who is in receipt of child benefit and it's up to the paying parent, in cases of equal care, to prove they provide equal day to day care which on the face of it should be pretty obvious if the child is spending equal amounts of time with the paying parent.
I do wonder about the CMS's impartiality. I read somewhere that 70% of its staff are female. Could this be responsible for unconscious bias? If my son had been directed, at the outset, to the 2012 Calculation Regulations, he would have been able to set out his arguments why he should be treated as a 'special case' and not treated as a 'non-resident parent'. I do wonder if many people in the same position as my son give up when informed by the CMS that their in-house appeal process supports continued payment liability.
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