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Paying Up and Looking Big.. Can the Child Maintenance Service Refuse to Repay Overpayments of Child Maintenance?

View profile for David Hodgson
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The simple answer is yes. A recent decision of the Administrative Court confirms the position. In this case a father (the paying party of child maintenance) was able to show that what he had been assessed to pay by way of an interim maintenance assessment, was £43,671.72 more than he should have paid. Yet the court said that he was not entitled to a refund. Why?

In a vast majority of cases, it is the government agency now known as the Child Maintenance Service --and not the courts—which determines how much one parent should pay to the other towards a child’s living expenses.

The exceptions are where:

  • the paying party (formerly called the ‘absent parent’) is not resident in the jurisdiction of England and Wales
  • the parents have agreed on the amount to be paid and ask the court to make an order by consent to reflect that
  • the CMS calculation is limited to  a maximum figure  (which applies to a parent  whose income is approximately £170,000 gross per annum) but that parent could and should pay more for  a child or for specific purposes

It is also possible in any event for a parent already receiving the amount thrown up by the CMS calculation to approach the court for orders to cover additional needs of the child such as school fees, other educational expenses or for the additional costs of disabled children.

If none of this applies then any claim for child maintenance (whether the parents are married or not) must be made to The Child Maintenance Service.

The Service has gone through various manifestations over the twenty six years of its existence from Child Support Agency (CSA) to the Child Maintenance and Enforcement Commission (CMEC) to the Child Maintenance Service (CMS). It applies a strict formula when calculating the rate of child maintenance to be paid. This has changed over the years but is currently based on the paying parties’ gross income. Information as to a parent’s income is therefore vital in order to calculate the level of child maintenance that is payable.

It is not uncommon for reluctant payers to try to frustrate the process by not providing the information required. The CMS have, however, been given enhanced powers to obtain information direct from HMRC. If the information in relation to current income as provided is insufficient or unreliable then the CMS may estimate that income and in doing so may make any assumption as to any fact.

This is what happened in this recently reported case. Insufficient credible information had been provided which led to an assessment of maintenance which proved to be rather too high once the more accurate information had been finally obtained by the Service. This led to a significant over payment, so the father who had been obliged by the CSA to pay at the higher rate because his submitted information had been inadequate wanted to claim back the amount he had been obliged to over pay.  His claim for reimbursement was refused.

When the decision was challenged the court said that the CMS had an ‘unfettered discretion’ as to whether to reimburse or not, albeit the following three considerations should apply:

1.         Who was responsible for the overpayment;

2.         Who was over paid; and

3.         Whether the maintenance had gone to the qualifying child.

In this case, the over payment had gone to the child’s mother who had used the overpayment (at least in part) for the benefit of the child. However the determining factor appeared to be the payer’s behaviour over a very long period in frustrating the proper assessment of maintenance. It was this conduct which led the court to conclude that it was fair enough and quite legitimate  for  reimbursement to be refused—even though the  ‘assessing authority’ (here the CSA)  having itself made errors.

The clear message to be taken from this case is that the court will be very slow to allow any reimbursement of a payer who has sought to frustrate the process of assessment of child maintenance. Therefore if requests for information are made of a parent by the CMS it is vitally important that the parent provide that information as fully and promptly as possible so that the agency can undertake an assessment. If this does not happen and as a result the demand for payment comes out too high-- and it is later found that too much has been paid over, particularly if this duly reached the child in question-- it is unlikely that there will be a refund.

If you'd like any advice regarding the above please call us today on 020 7091 2700.