CMS: Rogues inside the FIU? or example of endemic illegality and misrepresentation?

The Child Maintenance Service Financial Investigation Unit

We have written before about the Financial Investigation Unit (“FIU”) and the interesting past of their leader, Barry Porter. You can read that piece here. In this article we are going to focus on another specific member of the FIU and what amounts to (in all likelihood), illegal intimidation practices.

Voice of the Child have continued to examine Barry and his team of “highly trained” investigators. Previously we pointed out that the FIU (according the the DWP) do not operate with any internal policies or guidance. We are also aware of a current ICO investigation relating to misuse of Freedom of Information Act exemptions in an attempt to further obscure the workings of this seemingly mismanaged department that MPs (like Heidi Allen and Marion Fellows) like talking about so much.

In order to support the conclusions we will draw, we have obtained examples of some of the correspondence being sent out by members of the FIU. These are being sent to people and companies as they conduct what they call “complex earner” investigations.

Complex earner investigations

In March 2017 guidance for CMS caseworkers was changed so that all CMS cases where the paying parent was classified as a “complex earner” are referred to the FIU for them to do an investigation.

The Voice of the Child would stress at this point that being classified as  a “complex earner” does not in any way imply that any sort of illegality has taken place on the part of the parent paying child maintenance.

A substantial increase in these complex earner investigations can be observed when you review the data contained in the Child Maintenance Service experimental statistics. These are meant to be released quarterly but, like much to do with the CMS the latest release was late due to “problems with compliance data”.

The FIU had 555 ongoing investigations and a new intake of 550 in June 2017.

The numbers for December 2018 were 4,000 ongoing investigations with a further 965 intake that quarter. This is a massive increase in what largely amounts to speculative intrusion into peoples’ lives.

It’s now a matter of routine that Barry Porter and his merry band of misfits may go sifting around in the lives of people only because they happen to be the paying parent in a Child Maintenance Service case; or, as we will show, they may be people who have absolutely nothing to do with whatever CMS case the FIU are looking at.

 

Meet Vivienne Green

Vivienne Green, FIU investigator from Hastings, East Sussex. Picture obtained via a screenshot of Vivienne’s public social media..

Vivienne Green is a member of the FIU working out the Hastings office of the CMS in room E16f of Ashdown House in St Leonards on Sea in East Sussex. Barry Porter works in the same building.

Vivienne has been sending out letters of which we now have several copies from multiple sources.

These letters raise some serious questions about Vivienne’s conduct in her job working for the Child Maintenance Service. 

From the correspondence that we have seen we believe that Vivienne has been acting in a capacity far in excess of any statutory powers that are afforded to the Child Maintenance Service in the current legislation.

Her actions have the potential to affect peoples jobs, livelihoods and business reputation. To be crystal clear: we are talking about impacting both the paying parents as well as people who are wholly and completely unrelated to any CMS case that may land on Vivienne’s desk.

We should also add that whilst Vivienne is the focus of this article, she is not alone in the FIU in sending out these letters: we have copies of other, very similar letters sent by other members of the same team, all demanding the same information, and all use the same or very similar threatening language.

ultra vires practices?

“Ultra vires”

Meaning: beyond the legal power or authority of the person performing an action
Cambridge Dictionary definition of ultra vires

We’d like you to keep the above definition in mind (as well as the previous revelation that the FIU operates without policies and procedures) when reading what follows.

What has Vivienne been sending to people?

To protect the anonymity of the persons and companies who provided the information we are not posting copies of the letters that we have obtained. We will show you the exact wording as it appears in the letters:.

The piece of correspondence that we’d like to address in this article was sent to a client of a company that employed a paying parent. So the paying parent works for Company A, Company A supplied goods/services to Company B and it is Company B that received the letter.

The paying parent is not a Director of Company A (although, even if they were, the following explanation and criticism of the FIU and/or Vivienne would still apply).

The first lines of the letter say the following:

Dear Sir,

As an investigator authorised by the Child Maintenance Service, I am writing to you because I need you to provide some information about the company (emphasis added by VoC) named below.

Surname: xxxxxx

First name: xxxxxx

Date of birth: xx/xx/xxxx

Address: xxxxx (the paying parent’s home address).

Firstly, you will notice that Vivienne Green writes to say that she is requiring information about a “company” but then goes on to outline personal information about an individual (not a company).

Company law is very clear – companies are always distinct from individuals, a point continually obfuscated by the CMS and most especially the FIU.

Companies are legal entities in their own right; directors, shareholders, and employees are all different entities under the law.

The next part of the letter attempts to justify the alleged legal basis for sending the letter:

I am making this request under Regulation (4)(2)(b) and or (c) of the Child Support Information Regulations 2008. The authority to make these regulations is contained in Section 15 (or Section 15) of the Child Support Act 1991.

The letter then goes on to ask a series of questions:

Does [paying parent] currently work for you PAYE?

If yes, please confirm the terms of his employment or contract and the date [he/she] started working for you?

If no, please confirm they have never worked for you.

If [paying parent] no longer works for you please provide details of his new employer, if held, (including name, address and contact details for the company)

If [paying parent] does not work for you or has worked for you in the past, please provide the following information:

How often do you /did you pay [paying parent]? Weekly/Fortnightly/ Monthly/ Other (please specify).

How are/were payments made to [paying parent]? If payments were made by bank transfer, please supply account details you hold (including bank sort code and account number)

Please provide details of [paying parent’s] taxable and non taxable weekly/ monthly / 4 weekly income for the period of xx/xx/xx to date, to include tax and national insurance payments (this can be in the form of wage slips or computerised printout).

Remember; this letter is not being sent to the paying parent’s employer, but to a customer of the company that the paying parent works for. So not Company A, but Company B.

We should also point out that Company A has multiple shareholders and multiple directors (as does the client Company B): we are not talking about a company operated by a single director and shareholder although the same arguments apply equally.

Vivienne Green then goes on to ask a bunch of probing and arguably illegal questions:

If [paying parent] provides services to your company on a self employed or sub contractor basis or under the company name [current employers name] please confirm when these services started, what services [he/she] provides and if [she/he] provides these services exclusively to [client of paying parents employers name].

If [paying parent] or [current employers name] provides these services to another company that you are aware of please provide details of the company.

How do you pay [paying parent] or [paying parent’s employer] and how much have you paid since these services started?

How many jobs has [paying parent’s employer] and/or [paying parent] billed/invoiced you for? Please provide copies of of these bills or invoices to cover the dates xx/xx/xx to date.

The letter then states that the client company will not be in breach of the Data Protection Act or GDPR (General Data Protection Regulations) data protection laws if they answer the questions above.

Finally, the letter ends with the following friendly reminders:

You do not have to provide any information – in documents or other forms – that may incriminate you, or your spouse if you are married.

You have a statutory obligation to provide this information (in bold in the letter)

The legislation and legal basis for the letter

Returning to the legal basis on which the letter was sent, let’s now take a look at exactly what Regulation (4)(2)(b) and (c) of the Child Support Information Regulations actually say:

4. (2) The persons required to furnish information or evidence are—

….

(b)a current or previous employer of the non-resident parent;

(c)a person for whom the non-resident parent is providing or has provided services under a contract for services;

 

Remember, these letters (of which we are using Vivienne’s as an example, but we could just as easily have chosen Susan Hayes or any of the others in the FIU as an example) are sent to Company B; they are not sent to Company A. The Paying Parent is an employee of Company A and not Company B.

Nowhere in the legislation does it say that there is any legal basis for asking about the private corporate affairs of the company for whom a paying parent works like Company A. Neither is there a legal basis anywhere for the FIU to be demanding this information from 3rd party companies like Company B.

Questions to clients of a private company (which is a separate legal entity from the paying parent) about that company’s billing, other clients, and any associated financial detail is all commercially sensitive information relating to the operations of said company, and is nothing whatsoever to do with the employment status of the paying parent.

Frankly, it’s none of the FIU’s business – precisely because it isn’t relevant to any “investigation” they may be conducting.

GDPR and Data Protection Ramifications

Notwithstanding this, Vivienne then tries to justify demanding data from what she acknowledges is likely to be protected personal data under the Data Protection Act and GDPR by claiming (wrongly) that the supply of information of that type is somehow required by law!

Vivienne may well have committed an offence under Section 170 of the Data Protection Act 2018 with this particular statement. If the client company to whom the letter was sent did disclose much of what was asked then they also are potentially guilty of an offence under the same piece of legislation.

Vivienne saying that giving the information would not violate the Data Protection Act or GDPR is a nonsense. That exemption only applies for information they are entitled to ask for.  We’re pretty certain that “Vivienne said it would be OK” wouldn’t hold much water in the face of a data protection breach investigation by the ICO.

What would Barry Porter think of Vivienne’s actions?

Then there is the issue of what Vivienne Green’s management might say about her actions? Would they support Vivienne in her chosen action in threatening the client/ customer of a private limited company?

Fortunately for readers, Voice of the Child have been aware of these practices for some time and we can give you a direct quote from Barry Porter himself in relation to the legality of contacting clients of a private company in the way Vivienne Green has done. Remember, Vivienne’s letter said the recipient had a “statutory obligation” to provide answers to her questions.

we have no legislative powers to compel customers of the paying parent to provide information, indeed even if we did, to prove an annual income would require us to speak to almost every identifiable customer to determine the annual turnover

Barry Porter, Head of the FIU

 

It looks like Barry agrees with us that Vivienne shouldn’t be sending out the sort of letters that we’ve highlighted above. Not only that, but the letter she sent out attempts to coerce information from a client company under threat of legal obligation (when the most senior person in the FIU has confirmed in writing that they have no power to force disclosure of such from any company, never mind a client company of a company…).

We would like to thank Barry for confirming that the FIU doesn’t have any legislative ability to compel customers to divulge information about subjects that are commercially sensitive (invoices, billing, other clients etc). We are slightly amused/concerned that he still appears to be confusing “turnover” (or revenue) with “income”.

Even with a self employed person operating  their own business within a Sole Trader platform, Child Maintenance is not charged on “Turnover”. Barry knows this, the CMS knows this, but still they continue to muddy the waters by using these terms incorrectly.

Note: There will be operating expenses (which can sometimes be considerable) that will have to be deducted before profit can be calculated, and then income is taken from profit – it’s the income portion that forms the basis on which Child Maintenance can be calculated.

Maybe we’ve got it wrong and Barry and his team really are stupid? If so we would suggest that Barry and his minions should familiarise themselves with Section 39 of the Child Support Maintenance Calculation Regulations and Part 2 of the Income Tax (Trading and Other Income) Act 2005 to avoid making such a rudimentary error again.

Clearly, if we’ve got it wrong and this isn’t all a deliberate attempt to subvert the law then the lack of training and absence of policies and procedures within the DWP, the CMS, and the FIU is all having an impact on the ability of Barry, Vivienne et al to do their jobs.

As far as accounting and the difference between “income” and “turnover” or “revenue” we would suggest that the DWP supply everyone within the FIU with the following book: “Financial Accounting for Dummies

Knowingly doing damage: Potential Impact of the FIU’s actions

It’s incredibly irresponsible and almost certainly professionally negligent and/or malicious of the FIU to allow its personnel like Vivienne Green to ask such questions, and most especially under the threat of legal action.

We suspect Barry and Vivienne knows full well that they shouldn’t be sending out letters like the one mentioned above (they just hope no one will notice). Letters containing demands like that mentioned above have the potential to do huge amounts of professional damage to companies that employ paying parents caught up in the Child Maintenance Service’s bureaucratic nightmare.

We know of at least one person who has been let go from their work due to the constant harassment of their manager by Vivienne. They are now at serious risk of losing their home and their marriage. We’ll be writing about another letter Vivienne sent in that case in a future article.

Just like Vivienne and others within the FIU, nobody likes being embarrassed or put in a difficult position when someone starts wading through their personal affairs. The paying parent at the heart of our story was extremely distressed to learn that a client of the company that they worked for now (wrongly) believed that they were a “deadbeat parent” who was avoiding paying child maintenance. Can you imagine how that conversation went between them and their boss, never mind their boss and the company’s client (Company B)?

Do you think Company B wants to buy anything else from Company A whilst the paying parent is still there as an employee? Do you think the paying parent’s boss wants to continue to employ the paying parent? and are they wondering how many other clients and suppliers have received these letters but haven’t said anything… yet… They thought the business slowdown was possibly due to uncertainty over Brexit but what if it’s because other companies don’t want to buy goods/services from an alleged “child maintenance avoider”?

And the rub of the story? the paying parent has never missed a payment in 10 years. No arrears, no collect and pay, no deduction of earnings orders. Remind us again why they are considered a “complex earner”? Could it be that Barry and his team are empire building within the CMS? By increasing their caseloads they can argue for more staff, bigger offices, more powers, higher salaries, higher bonuses, more job security.

The FIU had 555 ongoing investigations and a new intake of 550 in June 2017.

The numbers for December 2018 were 4,000 ongoing investigations with a further 965 intake that quarter. This is a massive increase in what largely amounts to speculative intrusion into peoples’ lives.

What happens next?

We hope that DWP, MP’s and others reading this will take the FIU to task for the hostile, illegal way in which they have been conducting their affairs. Voice of the Child wonders how many of the current 4,000 “complex earner investigations” are being conducted in this underhand and destructive way, harming careers and the children, paying parents and receiving parents caught up in the mess.

If you have received a similar letter from Vivienne or any of her other colleagues within the FIU we’d love to hear from you. A few of the people and companies who have already supplied copies of their correspondence to us are considering taking these matters to court in a joint action.

Like us, they all fervently believe that in cases where parents can’t reach a financial agreement then there is a place for Child Maintenance to be calculated and paid – but what none of us will tolerate is an organisation like the DWP/CMS severely damaging people’s lives on a whim.

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  1. Stacey on 29th April 2019 at 5:15 PM

    We have had a similar letter. There are several flaws with it. Letter been sent to a business where theres no connection with paying parent and letter states name of paying parent plus NI number and address. Who are they to be giving random companies this private information?!?!? Also says about complying with the order however its not an order its a request asking to give them information. Very corrupt group of people who try to bully Paying parents. Letters like this would fill me with fear without knowing what to look out for! Fortunately after speaking to a few people I have some knowledge



  2. Voice of the Child on 30th April 2019 at 9:56 AM

    We would be interested in seeing what they’ve sent you.



  3. Joe on 13th May 2019 at 9:51 AM

    I went self employed 5 months after being bullied out of a full time employed job I had for 10 years. Did my first self assessment to hmrc and gave a copy to cms to calculate my payments. I made very little money in that first year and relied heavily on my partner supporting me and family handouts. Now the fiu are writing to me asking for another copy of my self assessment and p60 and p45 from previous years. Also asking if I own a rental property, which I don’t and never have. Very distressing when all I want to do is try and work for my self from scratch.



  4. Mark Williams on 10th July 2019 at 4:23 PM

    I attended an interview yesterday where the fiu produced invoices, contracts and timesheets that had been sent to them by my equivalent of company B. Company B did not look to seek approval from my company A and feel that they were obliged to send the information under the child support regulations quoted. I’m struggling to figure out a next step as I feel the fiu have information obtained under false pretenses, but also feel unsure how to show my company b that they have released the information wrongly.



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