This article was originally published on 6th March 2018 and updated on November 20th 2018.
the definition of insanity is doing the same thing over and over and expecting a different result
The quote above is attributed to an unknown person but we think it’s pertinent to bear it in mind as the current MP for South Cambridgeshire attempts to turn back the clock on Child Maintenance legislation.
We have written before about Heidi Allen and her attempts to change elements of the 2012 Child Maintenance Scheme (by reintroducing variation grounds that were removed from the previous, failed CSA legislation). We have now seen the first draft iteration of the Bill. For those who are coming at this for the first time you can read more about it on the following links:
We have concerns about any attempt to tinker with elements of the incumbent Child Support legislation in isolation (especially as we are now aware that the DWP have admitted that there are problems with affordability of the calculations). Wholesale reform is the solution.
It was therefore interesting to get a first glimpse of the Bill that has taken over 3 months to produce. Would it stand up scrutiny and solve the alleged problem; or, would it be a retrograde step and causing more issues that it attempts to solve?
Firstly, we would encourage readers to take a look at the website that Heidi has set up to inform people of the Bill’s progress. It can be found by clicking the link here. She goes to some length to explain the background to the Bill by saying the following
These problems were first brought to my attention by a number of my constituents. We met regularly so I could get to grips with how the system worked and their personal experiences of it. Following these meetings and at my request, the Chair of the Work and Pensions Select Committee, of which I am a member, agreed to launch a wider inquiry into the workings of the CMS. The inquiry received evidence from affected parents, Ministers and Departmental officials, lawyers, policy experts and external organisations such as “Gingerbread” and “Families need Fathers”.
It is indeed true that an inquiry was held in 2016. Evidence was presented by various parties of which “Gingerbread” and “Families need Fathers” were 2 organisations that fielded views. This of course turns the argument into one of “mums” vs “dads”.
Even last year, we wrote about this inquiry and our concerns about its objectivity:
The Government also provided a comprehensive response to the inquiry in which they provided reasons for their decision not to reintroduce “asset” or “lifestyle” variations into the 2012 Child Maintenance Regulations which are based off the Gross Income of the payer. Previous iterations of the Child Support Maintenance legislation were based on Net Income.
Specifically, in relation to the variations that Heidi Allen and her supporters are looking to reintroduce, the Government said the following (emphasis in bold added by Voice of the Child):
The Government recognises that some parents have complex income arrangements and that it is vital that the CMS has the right powers to ensure that a fair assessment of child maintenance liability can be made in these cases.
Under the 2012 child maintenance scheme, the gross weekly income used to calculate child maintenance is usually based on a person’s taxable earnings, in the most recent tax year for which HMRC hold a complete record. This information is provided directly from HMRC to the CMS. Having access to income information reported by HMRC allows the CMS to capture a much wider range of income types received by non-resident parents than under previous schemes.
At any time, either parent can request that the CMS takes into account additional income received by the paying parent. This can include ‘unearned income’, such as income derived from property, savings and investments (including dividends). Rather than the capital value of any assets, the CMS takes into account the actual income they generate. The CMS can also vary the calculation if a receiving parent reports that the paying parent earns other income in addition to receiving benefits, or if they suspect that the paying parent is controlling the amount of income they get by diverting it to another person or purpose. We will refer cases that require further investigation to the FIU.
If either parent is unhappy with the calculation they can first ask us to look at it again and we will swiftly amend any incorrect calculations or investigate further if appropriate. If parents remain dissatisfied after the decision has been reviewed, they can appeal to Her Majesty’s Courts and Tribunals Service.
This replaces the approach in earlier schemes which allowed parents to challenge an assessment on the grounds of lifestyle inconsistent with income. We have no plans to reintroduce this provision, which was difficult for parents to use and uncertain in effect. The onus to prove that grounds for a variation existed lay with the applicant, typically the parent with care, and it was often difficult to obtain such details. As a result, very few applications for ‘lifestyle’ variations resulted in changes to the existing liability. The decisions on these grounds also involved a degree of subjectivity and a large proportion of such decisions were challenged or appealed, delaying the receipt of a steady maintenance amount.
As part of the consultation on the new Arrears and Compliance Strategy, we will consider how we can strengthen our ability ensure all sources of income are included in the calculation.
Who is being consulted on the drafting?
As we’ve seen, Heidi Allen’s website mentions “Gingerbread” and “Families Need Fathers” having given evidence to the previous inquiry. This historical evidence was not related to this current Bill and, although it’s not expressly stated there is an implication that these organisations are playing a part in the Bill drafting to provide a degree of balance and objectivity to the proposed legislation.
Heidi says this on her website
I have worked closely with the Clerks of the House, important stakeholders and policy experts to create a draft Bill
We are aware that enquiries have been made with Heidi Allen’s office to find out who is being consulted on the Bill drafts. Who are the “important stakeholders and policy experts”?
It was confirmed that Heidi Allen’s office is consulting with Gingerbread and “a family lawyer” in the formation of this Bill.
Readers who have taken the time to review the Select Committee evidence would have seen a third person giving evidence the day that Gingerbread and Families need Fathers were in attendance. A family lawyer also spoke at that session. We understand that he has also been consulted on the Bill in an advisory capacity.
Interestingly, Families need Fathers are specifically not being consulted on the draft Bill but it’s unclear whether this was an oversight or, perhaps a deliberate attempt not to seek their views.
What does the Bill say?
We won’t cover off all of the material that is in the draft (which can be found here) as it will probably make more sense to dissect it at a later time when the ideas become more refined. There are however a few pertinent points that we would highlight in the first draft that are worthy of mention.
The Bill makes provision to reintroduce “Asset” and “Lifestyle” variation grounds into the 2012 rules. We would say at this point however that we see significant problems for the DWP in administering these and (if they are successful) would suspect that their staff can look forward to a massively increased workload on the Mandatory Reconsideration front.
The wording of the amendments comes verbatim from from the previous CSA variation regulations from 2000 (which of course were a source of dissatisfaction for the users of that system). This is not a new idea. It was trialled for 9 years with the CSA; and we all know how highly regarded that organisation was.
Paying and Receiving parents should also brace themselves for further delays (than are already the case) from the Child Maintenance systems.
12 month rule
The 12 month rule was brought in to try and ensure that maintenance agreements in consent orders were similar in terms of benefit derived to that which could be achieved through use of the statutory scheme for Child Maintenance. In the event that a person’s circumstances changed (whether that be the paying or receiving parent) then either was free to apply after 12 months to the CMS without needing to incur the costs and stress associated with returning to Family Court. The explanatory note in the Bill suggests that the 12 month rule only applied to paying parents but that is not the case. It was a right that either parent could exercise.
Of course, parental fighting is arguably not in the children’s interests and Family Court is adversarial in nature.
We’ll leave readers to decide whether encouraging Court appearances is a child centric amendment to the law.
Heidi made the incorrect claim that the Financial Investigation Unit had “only” conducted 4 investigations when she gave her initial 10 minute speech. This was, and is, completely and utterly misleading. The incorrect information gave credibility to the claim that further powers were required by the CMS.
The real facts with respect to the FIU investigations were revealed in the latest quarterly statistics release from the CMS. You can see the full set here.
Heidi has included a section (5) in her Bill requiring the Secretary of State to conduct a review of the effectiveness of investigations by the FIU. These include statistics relating to each investigation.
Now, if we were dealing with a set of only 4 investigations then perhaps this would not be an onerous task. However, the statistics above show that between October 2017 and December 2017 alone that over 1,500 cases were referred to Barry Porter’s FIU. During the same time period 535 investigations were completed, So, when Heidi stood up and told Parliament that there was need for her Bill (in part) because the FIU had only completed 4 investigations the number she quoted was only wrong by over 13,000%.
Disclosure of information from Family Court
Heidi is looking for information from Family proceedings to be disclosable (without the Court’s permission) to the CMS. This is a bit peculiar as, as we’ve seen, Heidi wants the 12 month rule to be scrapped (as above). If you have a consent order for maintenance and the Bill is successful in scrapping the 12 month rule then it’s unclear exactly who would be disclosing Family Court documents to the CMS.
Does Heidi want people to be able to use the CMS or does she want them to use the Courts?
We have noticed a fair amount of interest in this Bill on social media with Heidi receiving a lot of attention on Twitter.
The hashtag #fairsystem seems to be the rallying cry for those who are seeking wider reforms (in the percentages, variations, pension contributions etc).
This is clearly an emotive issue for many but only time will tell if anything that Heidi Allen is trying to do with this Bill will make the Child Maintenance system “fairer”. Of course, if we’re going to have a system its important to ensure that it achieves its aims for the children as well as being fair to those involved. The current system does neither.
We continue to believe that wholesale reform is the way forward. It would not be the easiest path but, then again, the things worth doing are rarely easy.
Update – November 20th 2018
Despite the first reading of the Bill having been made almost a year prior to today’s date and the second reading having been delayed twice, no official draft of the provisions that Heidi Allen MP was proposing ever made its way on to the Parliamentary page concerning the Bill (https://services.parliament.uk/bills/2017-19/childmaintenanceassessmentofparentsincome.html).
Readers should now be aware that this Bill has been withdrawn and will not be proceeding further.
We will be writing shortly on some information that we have concerning Heidi’s attempts to influence Child Maintenance law and policy behind the scenes and outside of the public spotlight.