I went through an absolute battle with CMS to get them to stop child maintenance payments when I had 50/50 shared care. Especially as mother gets the child benefits!
I quoted this a few times to them, in writing via secure messaging and post, and, phone! It did take a few months though....
Please refer to The Child Maintenance Service “How We Work Out Child Maintenance, A step-by-step guide”, which is enclosed, see Page 29, which states:
“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 childmaintenance for that child.”
The Child Support Maintenance Calculation Regulations 2012, Chapter 4, Special Cases, Clause 50 states that I cannot be classified as a non-resident parent because;
a. I do not provide day to day care to a lesser extent than mother. I have my son 50% of the month, taking him to nursery, medical appointments etc.
b. The Court Order I have provided clearly states that care is 50% between father and mother that there is an equal amount of night and day care between both parents, therefore, the rationale that the parent i.e. the mother receiving child benefit is a “resident parent” is incorrect. The Court Order overrides this as it states both parents have an absolute equal live with arrangement.
I am not a non-resident parent, and determining this by who receives Child Benefit is incorrect as evidence has been provided that there is an absolute equal live with shared care arrangement.
“Parent treated as a non-resident parent in shared care cases
50.—(1) Where the circumstances of a case are that–
(a) an application is made by a person with care under section 4 of the 1991
Act(a); and
(b) the person named in that application as the non-resident parent of the
qualifying child also provides a home for that child (in a different household
from the applicant) and shares the day to day care of that child with the
applicant,
the case is to be treated as a special case for the purposes of the 1991 Act.
(2) 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.
(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.”
Thanks for this Hubs, your rationale is absolutely spot on.
Could I please also add that when talking or writing to the CMS it is an absolute crapshoot as to who will address your case - you could be talking to an18 year old new joiner who has no idea of the rules, or equally someone who has been there forever and a day who hasnt looked at the regulations for years. It looks like, eventually your evidence got through to someone who knew what they were doing and how to apply the law correctly.
However, for some people, even submitting this kind of evidence will not be enough and a tribunal will be necessary. Do not be put off by this, make sure you submit the case as per in law stated by Hubs above (section 50 of the childrens act), the important point to argue is not that you have equal 50:50 care but that you have equal day to day care.
At this stage you may want to elucidate on exactly what your day to day care consists of. Do you have full access to the child's doctor, dentist and school and attend all appointments for the welfare of your child? Do you have all possessions and physical and emotional support at home at all times? Extracurricular hobbies and the like? Is there any way whatsoever that your ex can claim that they are the "resident parent" as they provide for something you do not? You can also submit a court order and other evidence to back up your claim.
The CMS will then have to respond to your appeal officially with how they calculated maintenance payments and how they have worked out that there is a resident parent. At this stage they will probably go back to your ex for any evidence she has to contradict yours.
Parties are then free to submit any more evidence as they see fit prior to the tribunal, which usually takes many many months to take place.
This is all from personal experience
Persistency is key.
Agreed with above, when I was phoning them, multiple times a week, it would vary. But ultimately I think the letters did the trick.
It’s strange as other gov agencies seem to know the law better than CMS, or CMS on purpose are difficult!
One of my calls to them was along the lines of CMS saying “Yes I know the law but the mother doesn’t work..” !!!!!
hi,
thanks for your advice. so for your 50/50 equal care, how does that translate, how many school runs or nights do you have the kids per week?
I cant talk for hubs, but for me I have our child Monday and Tuesday, ex has Weds and Thurs and we alternate long weekends in term times. There is an equal split of holidays. I attend school for drop offs and pick ups when child lives with me.
Exact equal no of nights a year.
Morning All,
I have just started discussions with the CMS for them to close my case. I have had equal shared care since Sept 2019, but they denied my request back then stating because my ex partner receives child benefit she is classed as the main carer and I need a court order to prove otherwise. Went to court two weeks ago and got the court order needed stating the equal number of days and nights my son is in my care. I sent this to the CMS asking for my case to be closed and they have replied with a letter saying:
'Unfortunately, we cannot accept that there has been change to the level of shared care for this child because:'
and that's it , with no other explanation or no other telephone communication with me. Its like they have not even bothered to look at it, , there has only been 48 hours between them receiving my court order and them replying.
I then spoke with them again via the telephone after I had received this letter and they said they will pass this on to the next team to get reviewed again and could take up to 30 days. I will also reply with a letter stating why my case should be closed based on the below:
The Child Maintenance Service, How We Work Out Child Maintenance, A step-by-step guide, Page 29:
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.
and
CMS Regulations 2012, Chapter 4, Special Cases, Clause 50
I was just wondering if anyone has got any more advice on how I should approach them and what I need to get my case closed.
Any advice would be welcome
hi,
they asked for a court order and now they have it. i would keep phoning them and ask them for an update. they can take their time. if they still disagree, they have a complaints procedure, so go down that route.
Hello everyone, I've just received a letter which states that they agree I've got 50/50 shared care but I still have to pay the EX as she gets CB. Has anyone found tips or advice online on what to include in an appeal to the tribunal. Has anyone represented themselves? Any help/ advice would be appreciated. Thank you in advance.
Hi,
- Do you have a court order? If there's agreement for equal 5050 day to day care, then you shouldn't be paying maintenance.
Here is info on appeals process https://www.nacsa.co.uk/appeals-tribunals
You could also open child benefit counter claim
@bill337 No court order, Both CMS and CB office have agreed through the correspondence that has been sent that 50/50care is in place.
I have had a very similar journey.
You have a few options, one is to apply for Child Benefit yourself, which if awarded to you would potentially mean that you could then open a CMS case against your ex. In my case I have two kids and the CHB was award one child to me and one to my ex. They may argue that deciding who the "parent with care" comes down to a discretionary decision, which isn't reassuring when half the staff don't know the relevant guidelines, however they have very clear guidelines around discretionary decisions and have to give you a detailed reason as to why they made decision of this kind. They will always apply a CHB presumption however if this is challenged they are supposed to consider all other evidence provided, such as who the children are registered at the Dr's with etc.
The other option is to beat them with their own law! There is some very clear legislation/ guidelines regarding shared care, non resident parent and the use of CHB as an indicator of "main carer". Below is a quote taken from the CMS's staff guidance regarding CHB and parent with care. Further down I've shared a couple of links and outlined the sections I used to help get my case closed. Sorry for the massive block of text, but I learnt a lot going through this and want to help as many people as I can!
Also I highly recommend requesting copies of all correspondence (telephone conversations and letters) between yourself and the CMS, you do this via a Rights of Access Request. I did this and it was much easier to show the CMS what they had done wrong!
Child Benefit is in payment, but parent with care status is disputed
Remember: where the person elects not to receive child benefit payments that
person is to be treated as receiving child benefit
If who should be treated as the parent with care is disputed, you should:
- presume that whoever is receiving Child Benefit for the qualifying child/ren is providing the greatest level of day to day care for them; and
- treat that person as the parent with care unless evidence is received to prove that this is not the case;
- the onus will be on the party disputing who should be treated as the parent with care to provide this evidence;refer to the meaning of home and the meaning of day to day care for further advice.
- refer to the meaning of home and the meaning of day to day care (below) for further advice.
The other party should be given the opportunity to comment on any evidence submitted and to provide evidence of their own.
NOTe: if the evidence shows that both parties are effectively providing equeal day to day care of the qualifying child/ren. then neither parent can be treated as the non- resident parent. In that event, you would need to close the case or reject the application.
Legislation can be found here https://www.legislation.gov.uk The relevant legislation sections;
The Child Support Maintenance Calculation Regulations 2012: Regulation 50
Section 3 of the Child Support Act 1991.
Section 42 of the Child Support Act 1991.
As for guidelines, here's two links to the full CMS staff policy and guidelines. https://voiceofthechild.org.uk/kb/child-maintenance-service-policy-law-and-decision-making-guidance/
https://voiceofthechild.org.uk/kb/cms-full-set-policies-procedures/
You want to look at the following sections;
CMS Policy, Law and Decision making guidance:Shared Care: Decision Making Guidance: Identifying Shared Care
CMS Policy, Law and Decision Making Guidance: Evidence and Decision Making
CMS Policy, Law and Decision making guidance: Evidence and Decision making: Discretionary Decisions-Decision making guidance
CMS Policy, Law and Decision making guidance:Decision Making Guidance: Who is a Non-resident Parent?