A new system of child maintenance

DWP consultation

February 2007 

1.  Introduction

1.1 Law Centre (NI) is a public interest law non-governmental organisation.  We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  It provides a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: immigration, social security, community care, mental health and employment.

1.2 Our services are provided to almost 500 member agencies.  Members include local Citizen Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency associations of local political parties, libraries and other civic organisations. 

1.3 Law Centre (NI) made submissions in respect of the consultation on The Redesign of Child Support in September 2006 and are pleased to have the opportunity to respond to this further consultation.  We broadly welcome the White Paper and particularly the commitment of the Government to reform the child maintenance system with the aim of ensuring more effective and efficient means of reducing child poverty and ensuring parents do take responsibility for the financial needs of their children.  

2.  Summary of Recommendations

We have, however, some concerns regarding some of the White Paper proposals.  In light of our concerns, we make a number of recommendations in response to this White Paper.  We comment in more detail on each of these concerns within the body of the paper and have highlighted the appropriate paragraphs for ease of reference.  In summary, we recommend that:

	The White Paper sets out a clear strategy for how the new system of child maintenance will contribute to the reduction of child poverty.  Specifically, there should be a high or total disregard of child maintenance in income-related benefits to further combat child poverty (Para 3.1)
	Government should consider the nature of a child maintenance assessment where shared care arrangements are in place.  Particular consideration should be given to circumstances where one parent is on a lower income than the other parent or is in receipt of benefits. (Para 3.2)
	Government should urgently release proposals regarding the joint registration of births for consultation (Para 3.3)
	Careful consideration needs to be paid to whether a charging regime should be constructed in the first instance for the new system of child maintenance (Para 3.4)
	The Government considers the need for dedicated services to assist separating families and/or ways of increasing support for the advice sector to take on this form of work, as well as the need for specific training for the advice sector on the new system (Para 4.1-4.4)
	Further consideration should be given to the need to record private maintenance agreements in some form (Para 4.5-4.6)
	Specific training, informed by service users, on the new system should be  available for Jobcentre Plus staff prior to roll out (Para 4.7)
	Further consideration be given to the impact of ‘fixed’ awards to safeguard against rough justice (Para 4.10)
	A form of overall assessment be developed to calculate a non-resident parent’s liability for children from different families in order to guard against reducing poverty for one family by increasing it in another (Para 4.11-4.13)
	The proposed new C-MEC should explore the full utilisation of existing enforcement powers prior to the introduction of further, more extreme, sanctions.  C-MEC should also consider a public campaign to promote the importance of supporting ones children (Para 4.14-4.17)
	Barriers to taking private legal action to enforce payments should be removed (Para 4.18-4.20)
	A residuary body to pursue outstanding debts should be established (Para 4.21-4.22)
	Government should consider extending the range of circumstances in which C-MEC, or a residuary body, has discretionary powers to write off a child maintenance debt (Para 4.23)

3.  General Comments

3.1 Child Poverty

3.1.1 Northern Ireland is one of the poorest regions in the European Union, with an estimated 37% of children affected by poverty.  Around 150,000 children are living in poverty in Northern Ireland and research published by Save the Children in 2005 found that almost one in ten, or 32,000, children are living in severe poverty.[1]  The delivery of child maintenance is a key area which, if managed correctly can have a significant impact on the reduction of child poverty in Northern Ireland as elsewhere in the United Kingdom. 

3.1.2 We are encouraged that the White Paper confirms that one of the key objectives set for the new child support system is to “help tackle child poverty”.[2]  While the White Paper makes frequent reference to how the proposals will contribute to the reduction of child poverty there is a lack of specific assessment on the perceived actual impact on child poverty arising from these proposals.  A clear strategy therefore needs to be formulated within the White Paper to clarify how redesigning the child support system will have a positive impact on reducing child poverty.  The 10 Year Strategy for Children and Young People in Northern Ireland 2006-2016 confirms Northern Ireland’s commitment to delivering on the UK child poverty targets, which aim to halve child poverty by 2010 and eliminate it by 2020.[3]

3.1.3 An increase in the extent to which child maintenance is disregarded in income-related benefits would not only significantly increase the incentive for parents with care to make an application for child maintenance but would also deliver more money to more children, thereby contributing to the elimination of child poverty.  This change would see the money paid in maintenance going directly to the parent with care (and therefore the child) rather than back to the Government.   This is a win-win situation for both parents; the non-resident parent, will see payments directly benefiting their child and the parent with care, will not see his/her benefit income reduced as a result of securing child support.  While the Government has not confirmed the level of disregard beyond the current £10 level we strongly recommend that a significantly higher or total disregard be implemented.

3.2 Shared Care

3.2.1 A further area that requires attention is in relation to shared care arrangements and how they will fit within the new system.  The White Paper does not refer to shared care arrangements and how child maintenance will be assessed in these circumstances.  In Northern Ireland, we have noticed the growth of genuine shared care arrangements following family breakdown and this type of arrangement should be encouraged and fostered within the new child support arrangements. 

3.3  Joint Registration of Births

3.3.1 The benefits of joint registration in the realm of child support are clear.  It would greatly increase the ability to trace non-resident parents and may also have the knock on effect of encouraging fathers to become more involved in their children’s lives. Such a change would also help to ensure a greater protection of the rights of fathers by ensuring that they are named on the birth certificate alongside the mother, therefore going some way to certify a father’s status and rights in effect of their child/children.  It is of note that Northern Ireland has the highest percentage of sole registration in the United Kingdom, at around 9 per cent, compared to around 7 per cent in England and Wales and around 6 per cent in Scotland.[4] 

3.3.2 We generally agree therefore, with the proposal to encourage joint registration of birth but have some concerns about the administration and enforcement of such a policy.  Consideration for example, needs to be given to the effect of any proposed changes on same sex couples.  Clear exemptions need to exist to ensure protection for a mother and her child who is born as a result of violent or coercive relationships, of a rape or when the identity of the father in genuinely unknown or there is other good reason for not identifying the father.  It will also be important to ensure that mothers in such circumstances are fully informed of their rights and any possible implications of not having the father named on the birth certificate. 

3.3.3 We note the Government will release proposals on this issue for consultation.  It is disappointing that such a key aspect of the reform of child maintenance was not considered in conjunction with the White Paper and we are concerned that a separate and distinct consultation process on the joint registration of births could have serious implications for the timeframe of implementing the proposed changes to the child maintenance system. 

3.4 Constructing a charging regime

3.4.1  In order to avoid the same problems and criticism aimed at the CSA, the new system will need to operate much more efficiently.  Further, it will need to inspire confidence within the general public to ensure that it is used and meets the needs of its clients.  We note that research by DWP found that parents were opposed to charging for this service.[5]  We would caution against the use of a charging regime, at least until it is clear that the level of service provided by the new agency would warrant the enforcement of a charge for service as this may adversely affect people’s willingness to use the system.  Further, while charging for the use of the new service may positively encourage some parents to make their own arrangements, for those for whom a private arrangement is not an option we would consider it unreasonable to level a charge. 

3.4.2 We do not, on balance, consider that constructing a charging regime is the most effective way to incentivise parents to make their own arrangements as for many people this is simply not possible.  Alternative incentives and appropriate education should be developed to target those parents for whom private arrangements are possible and the preferable option.  

4.  Specific Questions

Q1 Are the main principles and areas for detailed work that we have identified the right ones? 

a) How can we best encourage access to support services by parents with care and non-resident parents?

4.1 Given the increase in choice that the new system of child maintenance will offer parents, it is crucial that a high degree of quality information, advice and support is offered to parents to enable them to decide on the most appropriate method for them to secure a child maintenance agreement that works.  Moreover, while information and other support may be appropriate from Government sources it is essential that independent advice and case work support is available, if or when problems arise with the actions of the new agency. 

4.2 The commitment by the Government to address the current lack of adequate support services for parents with care and non-resident parents is therefore welcome.  While a number of agencies offer support and information to parents it is clear, given the history of the confusion surrounding claims made through the current system, that existing modes of advice are not meeting the needs of parents.  Although parents can access support through a variety of providers there is no specialist advice service that centres on the needs of separating families.  Very few organisations in the voluntary sector offer advice on child support matters in Northern Ireland.  Almost none offer casework or representation.  The resource intensive nature of child support work and its complexity has meant the voluntary sector has shied away from such work. 

4.3       The Government needs to give serious consideration to the need for services dedicated to assisting separating families and/or consider ways of increasing support for the advice sector to take on this form of work.  It will be instructive to monitor the work of Australia’s Family Resource Centres as they begin operation to explore whether they could provide a successful model for the UK.  Sir David Henshaw in his review of the child support system recommended further evaluation of the effectiveness of existing government schemes to support parents after separation and we would endorse this necessary work as a vital component to ensure the new child support system is successful. 

4.4       Further, specific training on the new administrative system and the opening of private and legal arrangements to parents with care on benefits will need to be given to staff working in the advice sector.  This is to ensure the relevant and necessary information is available to parents and that appropriate support systems for each of the three possible arrangements, private, legal and administrative, are in place.

b) How can we best make a register of private maintenance agreements an attractive prospect to parents?

4.5 We welcome the proposals to more fully support parental autonomy in making arrangements for child maintenance rather than requiring certain groups to use the CSA mechanism.  We fully support the removal of the requirement to make a maintenance claim through the CSA by a parent with care who claims Income Support or income-based Jobseeker’s Allowance.  This heralds a long-awaited change in administrative systems that have historically differentiated between people due to their benefit status by ending legitimate and beneficial maintenance agreements when a parent with care claims Income Support or income-based Jobseeker’s Allowance.  

4.6 We recognise, however, that there is still the need for the Government to provide some level of ‘back-up’, via C-MEC, for parents who are unable to reach agreement among themselves to ensure maintenance is agreed upon and paid by the non resident parent. We would agree with the recommendation made by the Child Poverty Action Group to record all private arrangements so a clear record exists of what initial terms have been agreed to protect parents and generate a speedy resolution of disputes.[6]

c) How can Jobcentre Plus most effectively encourage parents claiming benefit to make an informed choice about maintenance?

4.7 The proposals within the White Paper place a large degree of responsibility on Jobcentre Plus staff to provide relevant and correct information for parents claiming or considering claiming maintenance.  Considerable training will need to be available to staff prior to any roll out of the new scheme.  Consideration needs to be given to the allocation of resources for this purpose and training should be informed and/or delivered by those who have experience of the various maintenance arrangements.  It is vital that staff have a good understanding of the pros and cons of the various systems and of the other avenues of support available to the parent with care and the non-resident parent. 

Staff should also be trained to direct parents to independent support services.

Q2 Do you think the three main aims for the new organisation (as set out in paragraph 3.14) are appropriate?

4.8 It has been clear for some time now that the current system as administered by the CSA is not performing as anticipated.  We welcome the creation of C-MEC and the moves by the Government to reform the system with the aim of ensuring a more effective and efficient means of reducing child poverty and ensuring parents do take responsibility for the financial needs of their children.  We support, therefore the three main aims to ensure that C-MEC: is focused on helping parents meet their financial responsibility to their children, thereby helping to reduce child poverty and improve the welfare of children; encourages and empowers parents in their role and, where necessary, requires them to meet their obligations; and ensures the delivery of a high-quality and efficient service through its commissioning role.

Q3 Do the principles for moving forward set out in paragraph 3.21 provide the right approach?

4.9 In light of the clear failure in the past with the transfer of claims within the CSA from the “old scheme” to the “new scheme” in 2003, there is a pressing need for clear administrative systems to support those wishing to reapply under the new system.  In particular, the difference in treatment around receiving a child support maintenance premium under the 2003 scheme and previous schemes is indefensible.  We have some concerns as to how the transition to C-MEC will be managed in practice but welcome the principles guiding the approach to transition.  In particular the priority placed on issues of child poverty and the move towards greater parental autonomy provide for an approach focused on family welfare. 

Q4 Is our approach of combining a simpler formula for assessment with a system for making exceptions the right one?

4.10 We welcome the proposals to simplify and speed up the assessment process.  While exceptions in certain circumstances are unavoidable, the simplification of the assessment process should greatly benefit all those involved in the process.  We are concerned, however, by the focus on largely fixed-term awards and the use of the last available tax details for calculations of maintenance.  While a ‘fixed’ system will provide greater clarity and simplify the process by guarding against constant changes there is the danger of generating ‘considerable rough justice’  as if the non-resident parent’s income falls by 24 per cent he/she will still be liable to pay the ‘fixed’ amount until it falls by more than a quarter.  This may place a considerable burden on a non-resident parent.  Further consideration of the impact of fixed awards and monitoring implementation will be necessary.[7] 

Q5 Which of the three approaches outlined in paragraphs 4.25 to 4.27 is the one that we should use to decide what child maintenance parents should pay in a case of this kind?

4.11 Considerable care will need to be taken when considering the impact of second families on child maintenance assessments.  Although the existence of second families is commonplace it will be important to consider the needs and ability of a non resident parent to pay child support for two sets of dependent children.  In light of the focus on reducing child poverty the Government will need to ensure that any policy put in place will not have the affect of reducing poverty for one group of children by increasing it among another.[8]

4.12    Consideration needs to be given to the number of children supported by a non-resident parent.  If no account of other children and other private maintenance agreements is made there is the danger that the non-resident parent will be placed in a unsustainable financial position or that he/she will reduce his/her private child maintenance payments to subsidise payments enforced by the new scheme.  This is not acceptable.  A simple deduction of established child maintenance payments from the income used to work out a non-resident parents liability for second families is also unsatisfactory as this may lead to considerable disparity in child maintenance payments for different children.

4.13    We recommend the development of some form of overall assessment as referred to in paragraph 4.27 of the White Paper.  We would welcome further information regarding the nature of this assessment and the development of any formula to calculate a non-resident parent’s liability. 

Q6 Are there other approaches to enforcement that we should consider?         

4.14 We welcome a system that takes enforcement seriously and that will not allow for payments to fail to start, dwindle over time or stop to ensure that agreements made will stand the test of time and that any deviation from agreements will be dealt with effectively and efficiently.  However, we have some serious concerns about some enforcement recommendations in the White Paper.

4.15 While we recognise the need for more robust enforcement of maintenance payments, we would strongly recommend that consideration be given to alternative methods of enforcement prior to consideration of such extreme sanctions such as the withdrawal of driving licences, surrender of passports or imposition of curfews and systems of electronic tagging.

4.16 The CSA has a rather poor history of enforcement, although we recognise that it is increasingly using its enforcement powers to deal with people who wilfully fail to make payments.   Historically, however, this has been a case of too little too late, hence the high level of outstanding payments and debts that currently clog the system.  For this reason, we are particularly concerned that while the Government is proposing stronger sanctions, existing enforcement powers have yet to be tested to the limits of their effectiveness.  It therefore seems appropriate at this point for the C-MEC to explore the full utilization of existing enforcement powers before further sanctions are employed.

4.17 There is also an opportunity with a new organisation to put resources and energy into promoting the value of supporting children.  While it may seem self-evident to financially support one’s children, an imaginative campaign to emphasise the value of meeting this responsibility should run alongside an enforcement strategy. 

Q7 Is the shift from a mainly court-based enforcement system to an administrative approach the right way to make enforcement more effective?

4.18 Clear benefits arise from streamlining the child support service and creating a clear boundary between cases that are to be dealt with by the courts and those by the new agency.  It is our view that the courts should be a last resort where child maintenance issues, managed by C-MEC, are disputed and only in circumstances where C-MEC has not adequately dealt with the dispute.  We welcome, therefore, the administrative focus of the new system.   

4.19 A further enforcement issue not highlighted in the White Paper arises. As already stated, relying on the CSA to enforce child maintenance payments has been far from satisfactory.  Yet, under the current system, parents with care involved with the CSA have been precluded from seeking their own measures of enforcement against a non resident parent who has not been paying child maintenance.  This practice of restricting a parent with care’s ability to seek a private legal action against a non resident parent raises significant concerns regarding access to justice. 

4.20 Therefore, we would be interested to learn whether parents with care who decide to use C-MEC will have a right to bring private actions to enforce payment of child maintenance from a non resident parent or whether they will have to rely on the enforcement measures used by the new agency.  It is vital that parents with care are able to actually receive the money that is due to them from a non resident parent.  If C-MEC is unable to ensure enforcement of the maintenance agreement the option of private legal action should remain available to those parents who wish to use it.  Arrangements should allow for such legal action in carefully prescribed circumstances where C-MEC has failed to meet its responsibilities. 

Q8 Are we right to give more focus to chasing collectable debt?

4.21    Attention must be given to chasing collectable debt due to the staggering amount of debt that has accumulated.  As recommended in our response to The Redesign of Child Support a residuary body should be established to pursue outstanding debts to ensure that C-MEC does not inherit these and become immediately disadvantaged as a result.  It would be hoped, however, that such a body would exist for a pre-determined period of time only, as there will come a point when it is no longer cost effective to continue to use public resources to attempt to collect such long outstanding debts.  We refer to the findings of the National Audit Office that an estimated £3.5 billion of outstanding maintenance is still to be collected and that 60% of this is considered to be uncollectible.[9] 

4.22    We also think this body should look closely at the issue of self-employed absent parents where there are significant divergences between apparent income and lifestyle.  Our experience is that the current CSA does little to investigate this apparent discrepancy.  Instead, it is left to the parent with care or an appeal tribunal to try to gather the evidence.  This is neither appropriate nor desirable and may be one area where the residuary body could fruitfully concentrate some of its resources. 

Q9 Is our approach of introducing a law to write-off debts in limited circumstances the right one?

4.23    There will come a point when it is no longer cost effective to chase collectable debt and therefore a power to write-off debts in certain circumstances will be necessary.  The limited circumstances detailed in the White Paper, however, may prove to be inadequate to deal with both the sheer volume and nature of debt.  We note that this list of circumstances is not exhaustive and in practice it may be necessary to write off debts in circumstances other than those set out in the White Paper in order to move forward with the new system.  We would recommend that a residuary body, if formed, to collect debt should be given some level of discretion re the circumstances for writing off debts to ensure that the new system of child maintenance is not haunted by the failures of the past. 

5.  Conclusion

5.1 We believe this review and consultation process creates a significant opportunity to capitalise on the redesign of a child maintenance system in such a way as to have significant implications on the Government’s ability to meets its child poverty objectives and as such, the focus of any new system should be clearly on the needs and rights of children and on the reduction of child poverty.

5.2 Law Centre (NI) welcomes the opportunity to respond to this consultation document.  We trust you will find our comments helpful.  If there is any further way in which we could contribute to this process we would welcome the opportunity to do so.