Home >  Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - October 1998 - March 1999 > C.662/98 Full text

Sixth Report Session 1998-99

Volume 2
OCTOBER 1998 - MARCH 1999

The full report of selected cases

Summary of selected cases

DEPARTMENT OF SOCIAL SECURITY

Case No. C.662/98

Delays and errors by the Child Support Agency (CSA) in securing child support maintenance

13.1 Mrs S complained that the failure of the Child Support Agency (CSA) of the Department of Social Security (DSS) to secure child support maintenance for her children had caused her financial hardship and distress for which she sought redress.

13.2 My investigation of Mrs S's complaint began in June 1998 once the Ombudsman had received comments from the Chief Executive of CSA after the Member had referred the complaint. I have not put into the report every detail investigated by the Ombudsman's staff, but I am satisfied that no matter of significance has been overlooked. An annex to this report lists and explains the initials used in it.

Background

13.3 CSA were set up as a result of the Child Support Act 1991 (the Act) to administer the assessment, collection and enforcement of child support maintenance. A parent with care (PWC) in receipt of certain prescribed benefits, including income support (IS), is normally required under section 6(1) of the Act to pursue maintenance for a qualifying child from the absent parent (AP) through CSA. PWCs who do not receive benefit may apply for maintenance under section 4 of the Act. A PWC applies to CSA for maintenance by completing a maintenance application form (MAF) which provides information about her financial circumstances and details about the AP. CSA then send a maintenance enquiry form (MEF) to the AP to obtain a signed financial statement so that a full maintenance assessment (FMA) can be made under a standard formula. All maintenance assessments and subsequent reviews are undertaken by child support officers (CSOs) based in regional CSA centres, and Mrs S's case was dealt with by the centre at Dudley (Dudley). It is not for the Ombudsman to determine liability to pay child support maintenance and I refer to such matters in this report only to set in context the administrative handling of Mrs S's case.

13.4 If an AP provides insufficient information to enable a CSO to make a FMA, the CSO may impose an interim maintenance assessment (IMA). An IMA does not take account of the AP's personal and family circumstances and will usually be higher than the eventual FMA. Where an AP fails to provide information about his own income a CSO may impose a category A IMA set at one and a half times the PWC's estimated maintenance requirement. However, where a CSO considers that a category A IMA is lower than the FMA is likely to be, a category D IMA can be made instead, based on an estimate of the AP's true earnings. Before an IMA can be imposed CSA have to send a written notice to the AP at an address in which they have confidence, warning him that an IMA is being contemplated, and they must then allow a period of 14 days for the AP to provide the required information. If CSA have difficulties in establishing reliable details about an AP they have powers to trace his home address, his employment status and his employers' address through various means; and each CSA centre has a special trace section for that purpose.

13.5 Before 18 April 1995 an IMA came into force in the week beginning 14 days after the warning notice was sent, on the same day of the week as the MEF had been issued. An IMA made on or after that date comes into effect between the first and seventh day (inclusive) following the date on which it was made, on the same day of the week as the MEF was issued. An IMA which is defective because of a procedural error (for example the failure to issue a warning letter to the AP) can be cancelled and replaced and, since 16 February 1995, a CSO has been able to cancel and, where appropriate, replace an IMA which is defective because of an adjudication error (for example an incorrect effective date). Where a FMA is made following an IMA, the amount of child support maintenance payable in respect of any period from 18 April 1995 during which the IMA was in force is that payable under the FMA. Under arrangements introduced on 2 December 1996, once a FMA has been made either parent may apply for a departure from the standard formula, and such a departure may be allowed in exceptional circumstances where CSA find that that would be just and equitable. However, a parent cannot apply for a departure from a category A IMA. Under section 18 of the Act a parent who is dissatisfied with a CSO's decision (including a decision to cancel an IMA) on the grounds of error either in fact or in law may apply for a review. A different CSO then considers whether such a review is justified and, if so, carries it out.

13.6 Where CSA seek to recover from an AP arrears of child support maintenance which have accrued for any reason they must first send him an arrears notice itemising the amount owed. That gives the AP the opportunity to pay the full amount or to negotiate a voluntary agreement to pay the arrears over a period of time. Where an arrears agreement cannot be reached and the AP is in paid employment but not self-employed, a CSO acting on behalf of the Secretary of State for Social Security has discretion under section 31 of the Act to issue a deduction from earnings order (DEO) to the AP's employer to secure the payment of any amount due. However, CSA have only had powers to impose a DEO in respect of an IMA since 7 February 1994.

13.7 Under the terms of the non-statutory DSS compensation scheme, the scope of which the Ombudsman and his predecessors have accepted, CSA may make a special payment to a person who has suffered financial loss as a result of official error. The general aim of the scheme is to put those who have suffered a financial loss as a result of official error back to the position they would have been in had the maladministration not occurred. In exceptional circumstances compensation may also be paid where a person has suffered stress or gross inconvenience as a result of official error. Applications for compensation are dealt with by CSA's special payments team.

Investigation

13.8

1993

On 13 July 1993 Dudley received a completed MAF from Mrs S, who was at that time in receipt of IS (paragraph 13.3), seeking child support maintenance for her two children. Dudley sent a MEF to the AP (whom I refer to as Mr X) on 19 August and on 2 September they sent him a reminder to return the MEF. He failed to return it, however, and so a CSO imposed an IMA (paragraph 13.4) for £116.48 per week on him on 28 September, with effect from 22 September; and Dudley informed both parents about the IMA on the following day. On 25 October Dudley wrote to Mr X to warn him that his maintenance payments were in arrears.

13.9

1994

On 24 January 1994 Dudley again told Mr X that his maintenance payments were in arrears. Mr X did not respond and Dudley sent him a further arrears notice on 9 March. He still did not reply and so Dudley passed his case details to their special trace section (paragraph 13.4) on 29 March. However, on 14 April Dudley sent the case papers to their storage facility without taking any further action.

13.10

1995

On 24 February 1995 Mr X's solicitors asked Dudley to issue him with a copy of the IMA notification. Dudley retrieved the file from storage and sent Mr X a copy of the IMA on 24 March, but I have seen no evidence that they took any further action on Mrs S's case at that time. On 1 September Mrs S telephoned Dudley to tell them that she had ceased receiving IS on 14 September 1994 but that she wished to continue with her claim for child support maintenance, and she confirmed that in a letter which Dudley received on 5 September. On 26 November Dudley sent Mrs S another MAF to take account of the change in her circumstances and they sent another MEF to Mr X. Mrs S returned her completed MAF on 14 December, expressing concern that she had not yet received any child support maintenance.

13.11

1996

On 7 January 1996 a CSO recorded that the IMA (paragraph 13.8) had been incorrectly made because CSA had not first issued a warning notice to Mr X and its effective date was wrong because it did not correspond to the day of the week on which the MEF had been issued (paragraph 13.4). CSA cancelled the IMA on 18 January and informed both parents on the following day. On 8 March Dudley wrote off the maintenance arrears which had accrued under the defective IMA. On 3 May Mrs S's solicitors wrote to Dudley asking for a reply to a letter which they said that they had sent on 19 February. As Dudley had no record of having received that letter they telephoned Mrs S's solicitors on 10 May to ask for a copy, which they received on 16 May. In their letter of 19 February, Mrs S's solicitors had asked Dudley to review (paragraph 13.5) the decision to cancel the IMA but Dudley did nothing about that after receiving the copy letter. Mrs S telephoned Dudley on 2 July to ask about progress on her case but, after some subsequent shunting of her file between sections, Dudley returned it to storage on 24 July without taking any further action.

13.12 On 1 August 1996 Mrs S's solicitors again wrote to Dudley seeking a reply to their letters (paragraph 13.11). As a result, Dudley obtained Mrs S's file from storage on 8 August and they wrote to her solicitors on 13 August to apologise for the delay. They explained why the IMA had been cancelled in January and that the arrears which had accrued up to that time were unenforceable. They said that Mrs S was entitled to ask for a review of the decision to cancel the IMA and that they would be willing to consider any application which she may care to submit for compensation. On 16 August Dudley issued another MEF to Mr X; and on the same day Mrs S's solicitors replied to Dudley's letter of 13 August, pointing out that they had already requested a review of the decision to cancel the IMA in their letter of 19 February. A CSO considered that request on 23 August and decided that there were no grounds for undertaking a section 18 review because the IMA had been correctly cancelled. Dudley notified Mrs S of that decision on 27 August and on the following day they told her solicitors that they could not consider making her a special payment because their policy at that time was that a compensation claim could only be assessed on the basis of a FMA (and no such FMA had been completed in Mrs S's case). On 9 September Dudley sent Mr X a reminder to return his MEF and on 2 October they issued notices to both parents warning of their intention to impose an IMA. On 23 October a CSO imposed an IMA for £120.42 per week with effect from 25 October and Dudley notified both parents on the following day. Dudley then sent an arrears notice to Mr X on 10 December.

13.13

1997

On 2 January 1997 Dudley received a letter from Mrs S's solicitors seeking an update on her case and Mrs S telephoned them on 3 and 6 February to ask them to take urgent action to secure child support maintenance payments. On 6 February a CSO attempted to contact Mr X's employers by telephone but I have seen no record of the outcome of that attempt. However, it seems likely that it was unsuccessful as on 24 February Dudley referred the case to their special trace section to establish the correct address for Mr X's employers (which turned out to be the one which Dudley already held). On 20 March a CSO issued a DEO (paragraph 13.6) to Mr X's employers to recover the child support maintenance due each week under the IMA (paragraph 13.12) plus £24.05 per week towards the arrears. On 27 March and 14 April Mr X telephoned Dudley to ask them to send him another MEF but Dudley have no record of having done so. However, Dudley do have a record that Mr X telephoned them on 23 April to say that he had returned the MEF although they have no record of having received it.

13.14 Meanwhile, on 15 April 1997 Dudley had received Mr X's first payment under the DEO which they paid out to Mrs S on 29 April; and Mr X then continued to make regular payments under the DEO. On 17 June Mrs S telephoned Dudley about the arrears of child support maintenance and asked them to take action to convert the IMA into a FMA so that they could consider her compensation claim. Mrs S telephoned Dudley again on 5 and 14 August and 8 September to ask about progress on her case but, despite the fact that they told her on the third occasion that they would try to telephone Mr X to obtain the details they needed to complete his MEF, and hence finalise a FMA, I have seen no record of any such action having been taken at that time. On 11 September Mrs S's solicitors wrote to Dudley to confirm details of the IMA, the current level of arrears and the action being taken to make a FMA. They sent Dudley a reminder on 24 October and Dudley replied to the solicitors on 3 November explaining that arrears of child support maintenance stood at £2,445.66 and that they could not calculate a FMA without the necessary evidence. Meanwhile, Mrs S had telephoned Dudley on 15 October to ask again about claiming compensation and Dudley had told her that no action could be taken until Mr X co-operated with them. She telephoned on 21 October to tell Dudley that she believed Mr X's lifestyle indicated that he could afford to pay her more than he was doing under the IMA and Dudley sent her a form which she subsequently completed to apply for a departure (paragraph 13.5). On 18 November Mrs S telephoned Dudley to ask about her departure application but on 21 November CSA decided that they could not consider her application because a category A IMA was in force (and CSA have subsequently told the Ombudsman's staff that her application is regarded as having been rejected). In the meantime, the Member had written to the Chief Executive on 29 October asking her to look into Mrs S's case as a matter of urgency. The Chief Executive replied on 26 November, promising that Dudley would undertake a thorough investigation of Mrs S's case. Mrs S then telephoned Dudley on 1 and 5 December. On 12 December Dudley decided that they could not consider making a category D IMA (paragraph 13.4) because there was no evidence that Mr X had a high enough income to merit it.

13.15

1998

On 5 January 1998 the Chief Executive wrote again to the Member explaining that Mrs S's applications for a departure and for compensation could not be considered until a FMA was in place. The Chief Executive also said that Dudley would consider whether a category D IMA was appropriate (despite the fact that they had already decided that it would not— paragraph 13.14). On the same day Mrs S telephoned Dudley about the action to be taken to calculate a FMA and on 9 January she telephoned again to complain that CSA had failed on numerous occasions to give her satisfactory replies to her questions about converting the IMA to a FMA. On 16 January a CSO recorded that the IMA in force was set higher than a FMA would be and that, as Mr X was subject to a DEO, nothing more could be done to force Mr X to co-operate. Mrs S contacted Dudley again on 27 January, and they wrote to her on 9 February explaining that Mr X was paying her maintenance at a much higher rate through the IMA than he would if a FMA were to be made but that they could not consider her compensation claim until a FMA had been made.

13.16 On 10 February 1998 the Member wrote to the Chief Executive asking CSA to make a lump sum payment to Mrs S of the arrears which had accrued. On 26 February the CSA special payments team (paragraph 13.7) told Dudley that, following an internal policy change, a compensation claim could be considered if an IMA payment pattern had been established; and Dudley then referred the case to them. On 12 March the Chief Executive replied to the Member's letter of 10 February. She said that CSA could not make Mrs S the lump sum payment which the Member had requested and that, on the evidence available, a higher-rate IMA would not be appropriate. However, the Chief Executive also said that the special payments team could consider paying compensation in certain cases where only an IMA was in force and that they would take the Member's letter as a fresh application for compensation on Mrs S's behalf. On 29 April Dudley noted that Mr X had been paying child support maintenance under the DEO for a year and had not indicated that it was causing him any financial hardship. They therefore asked his employers for details of his current wages but, having received that information on 12 May, they decided that a category D IMA would not be appropriate. On 21 May a CSO contacted Mr X by telephone and obtained from him some of the details required to complete the MEF. Dudley then sent that MEF to Mr X on the same day for him to sign it, but I have seen no evidence that he returned it.

The CSA response to the complaint

13.17 In her comments to the Ombudsman, the Chief Executive of CSA said that she had written to apologise to Mrs S for the fact that her case had been handled badly. The Chief Executive acknowledged, and apologised for, the errors in the IMA made in September 1993, for the delay before a second IMA was made and for the delay before issuing a DEO. Finally, the Chief Executive said that CSA's special payments team would consider whether a compensatory payment should be made to Mrs S.

Subsequent events

13.18 DSS told the Ombudsman's staff on 21 August 1998 that CSA proposed to make an ex gratia payment of £16,741.11 to Mrs S, of which £14,444.10 represented compensation for the loss of child support maintenance between 22 September 1993 (the effective date of the first IMA) and 24 October 1996 (the day before the effective date of the second IMA), calculated at the rate set in the first IMA less the amount of IS already received by Mrs S during the period covered by the payment; and a further payment of £2,137.01 was intended to compensate her for the loss of use of that sum. The total sum also included £10 to reimburse Mrs S for the cost of the telephone calls and postage she had incurred in pursuing CSA's delays and a consolatory payment of £150 to compensate her for the gross inconvenience she suffered as a result of their actions. DSS also told the Ombudsman's staff that although CSA had declined to reimburse Mrs S's legal expenses they would be telling her that they would be prepared to reconsider that possibility if she could provide the relevant invoices and that they would also be willing to consider her claim for compensation for stress if she could provide appropriate supporting evidence. CSA subsequently confirmed to the Ombudsman's staff on 26 October 1998 that, in the light of further evidence provided by Mrs S, they had decided to make her a further ex gratia payment of £816.87 to Mrs S, of which £616.87 was to reimburse her for her legal expenses and £200 to compensate her for the stress she had suffered.

Findings

13.19 As the Chief Executive has acknowledged (paragraph 13.17), Mrs S received a very poor level of service from CSA over far too long a period. I accept that matters have not been helped by Mr X's apparent unwillingness to complete and sign a MEF, but the regularity of his payments under the DEO since its imposition in March 1997 suggests that CSA could have achieved some form of payment for Mrs S much more quickly than they did. Things got off to a good start in 1993 (paragraph 13.8) when Dudley issued a MEF within some five weeks of receiving Mrs S's MAF and then made an IMA when Mr X had failed to return the MEF some six weeks later. However, their initial error occurred in making an IMA which was defective and therefore unenforceable. That was bad enough, but the fact that it then took Dudley until January 1996 to realise their error and cancel the IMA (paragraph 13.11), seemingly without having considered in the interim whether they should exercise their powers to take enforcement action against Mr X (paragraph 13.6), meant that they had left Mrs S without any child support maintenance for almost three years. I criticise them most severely for that but, unfortunately, it was not the end of the story as Dudley then took no further action until August 1996 (paragraph 13.12) when they sent another MEF to Mr X and decided that there were no grounds for reviewing the cancellation of the first IMA; and it then took them a further two months before they made a second, enforceable IMA. I therefore welcome CSA's decision to compensate Mrs S fully for the child support maintenance forgone during the whole of the delay between 22 September 1993 and 24 October 1996 (paragraph 13.18).

13.20 Once CSA had succeeded in making an enforceable IMA, Mrs S still had to wait a further six months before she received any child support maintenance. The primary reason for that delay was Mr X's failure to comply voluntarily with the terms of the IMA, but I note that the Chief Executive has also apologised for the delay in imposing a DEO (paragraph 13.17). It would clearly be desirable for Mrs S to enjoy the benefit of a FMA, including the opportunity to make a further application under the departure procedures. However, the Chief Executive has confirmed that CSA are unable to do anything more about that because Mr X has failed to return any of the MEFs sent to him; and I am satisfied that CSA have done the best possible for Mrs S in the circumstances by ensuring that she continues to receive child support maintenance regularly from Mr X at the IMA rate under the terms of the DEO.

13.21 In addition to Dudley's long delays in handling Mrs S's case, their failures to follow actions through satisfactorily and the inadequacy of some of their records, I criticise the fact that Dudley's reply of 13 August 1996 (paragraph 13.12) to Mrs S's solicitors' letter of 3 May (paragraph 13.11) totally ignored the fact that the solicitors had already requested a section 18 review in their letter of 19 February 1996. I also consider it unfortunate that Dudley gave the misleading impression in their letter of 13 August 1996 that they would consider any written request from Mrs S for compensation without making it clear that, at that time, they were only prepared to consider such requests once a FMA had been made; and I am concerned to note that the Chief Executive's letter of 5 January 1998 to the Member (paragraph 13.15) was still saying that Dudley would be considering the appropriateness of imposing a category D IMA even though they had already decided in December 1997 that one was not appropriate (paragraph 13.14). I criticise those responsible for drafting the communications in question.

Conclusion

13.22 Mrs S has been poorly served by CSA over a long period of time although Mr X's behaviour has undoubtedly added to her frustrations. I regard the Chief Executive's apologies and the ex gratia payments totalling £17,557.98 to be a very satisfactory outcome to a fully justified complaint.

Annex

Initials used and their meanings

Back to top

Previous < Contents > Next

Short text of this investigation

Last updated: 19 April 2006