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Selected Cases and Summaries of Completed Investigations - October 2000 to March 2001
Volume 4 - 2nd REPORT - SESSION 2001-2002
Chapter 1
DEPARTMENT OF SOCIAL SECURITY
13.. Case No. C.1717/00
Child Support Agency: accumulation of large arrears of child support maintenance through official error
Summary
In November 1995 the Child Support Agency (CSA) made a maintenance assessment of £48.80 a week, nearly double the previous rate, effective from July 1995. Mr S was making payments through a deduction from earnings order. Despite the opportunities created by Mr S’s appeal and representations made against an arrears letter, CSA took no steps to revise the deduction from earnings order until January 1998. Mr S then found himself liable for substantial arrears. CSA’s independent case examiner urged strongly that Mr S should be offered some form of deferment, but CSA refused on the ground that their policy did not cover the accumulation of arrears through official error. As a result of the Ombudsman’s investigation CSA decided in the individual circumstances of Mr S’s case to offer him deferment as if he qualified under CSA’s scheme. They agreed in effect to write off arrears of £1,912.77.
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Full text
13.1 Mr M complained on behalf of Mr S that the Child Support Agency (CSA) caused arrears to accrue on Mr S’s account.
13.2 The case was the subject of an investigation by CSA’s independent case examiner who identified many handling errors and delays. CSA, however, declined to accept the case examiner’s recommendation that arrears which (in her view) had accumulated as a consequence of maladministration should be deferred in whole or in part.
Background
13.3 CSA are responsible for the assessment, collection and enforcement of child support maintenance. At material times in Mr S’s case maintenance assessments were made by child support officers, using a standard formula based on financial statements provided by and the circumstances of both parents. Periodic reviews of maintenance assessments were undertaken by CSA and in addition either parent could apply for a review if they believed there had been a relevant change in circumstances. The effective date of changed maintenance assessments is determined respectively from the date the periodic review became due, and the date the circumstances changed. Either parent dissatisfied with a child support officer’s decision could apply for a review by a different such officer and thereafter to an independent appeal tribunal.
13.4 Where methods of collecting child support maintenance have failed or seem likely to fail, CSA may impose a deduction from earnings order where the non-resident parent is in paid employment. Such an order requires an employer to deduct specified amounts which may comprise the regular maintenance due and a contribution towards any arrears. CSA’s standard practice where a new higher maintenance assessment is made is to require payment at that rate. Their position is that until the assessment is successfully challenged by way of review or appeal it remains legally correct and enforceable.
13.5 Under their compensation arrangements CSA may consider deferring some of the debt owed by the non-resident parent where arrears of maintenance have built up as a result of avoidable delay either in making a maintenance assessment or in carrying out a review. In those circumstances CSA would consider compensating the parent with care in respect of the amount deferred.
13.6 It is not for the Ombudsman to decide how much child support maintenance is payable. That is a matter for the decision-making and appellate authorities. Nor can he question a discretionary decision taken without maladministration. The investigation is concerned with CSA’s administrative handling of Mr S’s case.
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CSA’s comments on the complaint
13.7 In her comments to the Ombudsman, the Chief Executive of CSA did not dispute the contents of the independent case examiner’s report and agreed that further consideration would be given to deferring arrears that accrued as a result of Agency error. In effect that would require a new policy decision to be made to extend the deferred debt scheme to include error as well as delay (paragraph 13.5). The Chief Executive said she had written personally to Mr M apologising for the manner in which CSA had handled aspects of Mr S’s case. In response to enquiries from the Ombudsman’s office CSA officials could not give any indication of when the policy matter would be decided.
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Findings and conclusion
13.8 It is clear from the papers that CSA had originally imposed a deduction from earnings order against Mr S effective from July 1995. Had they acted in accordance with their normal procedure (paragraph 13.4) they should have made a fresh order after making a new maintenance assessment on 21 November 1995. As it was CSA delayed doing so for another 26 months. I have no difficulty in understanding Mr S’s belief (as confirmed to me by Mr M) that CSA had taken no action in November 1995 in the light of his immediate appeal. Like the independent case examiner I have no hesitation in concluding that CSA’s failings amounted to maladministration.
13.9 What was the impact on Mr S? That his maintenance assessment rose rather dramatically from £26.85 to £48.80 a week might well have caused financial hardship to him but that is not a matter for the Ombudsman (paragraph 13.6). But CSA’s failure to replace the deduction from earnings order meant that Mr S was faced with paying additional arrears in the region of £2,480 – based on the difference between the two assessments of £21.95 a week over nearly 113 weeks. (Subsequently, as a result of representations from the independent case examiner’s office, CSA made a number of changes in maintenance assessments, effective between August 1995 and April 1999; but the point of principle remained.)
13.10 In the circumstances I can see no logic in making a distinction between injustice arising though delays, where the deferred debt scheme can operate to the advantage of a non-resident parent, and injustice arising through official errors, where it does not. Where, as in Mr S’s case, child support maintenance was being deducted from his earnings at source, the distinction becomes even more bizarre. Put simply he had no choice, subject to certain safeguards not applicable in his case, but to pay the amount specified by CSA. Against that background, and irrespective of the outcome of CSA’s intended policy review, I asked the new Chief Executive if he would be prepared to have Mr S’s case looked at again, with a view to offering some deferment. I suggested in particular that it was reasonable for Mr S to have assumed that his representations about the revised assessment had been accepted by CSA. Similarly there had been no apparent attempt by CSA to return to the matter of arrears following the exchanges in June 1996.
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13.11 In reply the Chief Executive concluded that, because of the individual circumstances of Mr S’s case, it would be possible to mitigate the effects of CSA’s mistake. CSA had decided in their discretion not to recover income support paid to the parent with care. They proposed to treat Mr S as if he benefited under the deferment arrangements. They had calculated that the effect of the delayed collection of the correct amount of child support maintenance between 21 November 1995 and 20 January 1998 had been to add £2,483.47 to Mr S’s arrears. Since (under deferment) he would have been required to pay the last 26 weeks of those arrears – between 23 July 1997 and 20 January 1998 – amounting to £570.70, CSA proposed to suspend permanently the balance of £1,912.77. Taking into account all his payments, CSA had calculated that Mr S was legally liable for arrears of £1,944.48 up to and including 24 October 2000. He would accordingly remain liable for £31.71 as at that date. Finally the Chief Executive said that the interests of the parent with care would be protected and that CSA would pay over the arrears of maintenance owed to her.
13.12 The effect of CSA’s latest decision is to write off arrears of £1,912.77. I regard that as a very satisfactory outcome to Mr S’s complaint.
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