Arrears can build up when a person is due to pay child support maintenance via the statutory scheme but fails to pay the entire amount due on time. The difference between what is due and what is paid is known as “arrears”.
Arrears can occur on a Child Maintenance Service (CMS) account for a number of reasons in addition to the simple scenario mentioned above. When arrears are alleged by the CMS it is very important to understand your rights and the process that the CMS ‘should’ be following in order to bring the account balance up to date.
Other ways that arrears can be created (in particular what is know as fictitious arrears) is that the CMS makes a “back dated change in circumstances” where they apply changes (either correctly or in error). An example of this would be a salary increase in their system at a point in the future that alters what was due on earlier payment dates.
Why are the CMS telling me that I’m in arrears?
First and foremost, it is very important for you to understand exactly why the arrears have appeared on the account and that you check the CMS calculations to ensure that they are correct (and not ‘fictitious’). You should also make sure that the calculation does not contain errors. You can do this by requesting 2 things;
– A full account audit
– Making a Subject Access Request under the Data Protection Act 1998.
Both of these actions are covered in a recent article we posted here. The process for paying parents to validate arrears is exactly the same as for receiving parents. Where possible, if you are on good terms with the other parent it may make sense to work together to compare notes and speed up the identification of any errors made by the CMS.
By following the previous steps and doing the work suggested in our other article you should now have either identified that the original arrears figure was a mistake by the CMS (either in whole or in part) or, you will have confidence that the figure you have is correct and needs to be settled. There are several ways to accomplish this.
You should note at this point that the CMS has been given “broad discretionary powers” in relation to arrears. Have a read of the recent article regarding Welfare of the Child in Discretionary decisions by the CMS. It is worth bearing in mind that the CMS are legally obliged to have regard to child welfare when making a discretionary decision.
So, what are the options?
Perhaps the most stress free way of dealing with any legitimate arrears is to come to an agreement with the receiving parent on a payment plan and jointly inform the CMS. This may not always be possible (if you don’t speak to the other parent for example) but if it is a possibility then you are able to remove any CMS influence on the decision entirely and you will both be likely to be more satisfied with the payment plan. Make sure that any agreement between you is communicated jointly to the CMS in writing.
It is worth noting that the CMS does have the power to write off arrears “where the arrears are no longer wanted by the person with care or where they are very unlikely to ever be collected”.
Secondly, the CMS should try to come to a negotiated agreement with you.
Negotiating with the Child Maintenance Service
As with previous advice offered on these pages, when negotiating with the CMS this is best done in writing. Doing so will ensure that in the event of a future dispute you will be able to offer evidence of exactly was negotiated.
Be aware that the CMS does have their own definition between the commonly used words “arrangement” and “agreement”. Please not that if you don’t attempt to negotiate then the CMS systems are set up to recover arrears before the date of the next annual review. Therefore, negotiating is in your child’s interest to ensure that you are paying what is owed and that the amount is affordable to you.
The difference between arrears agreements and arrears arrangements
- an “agreement” is where a payment pattern is established that will recover the arrears within two years and ensure any regular maintenance due is also paid
- an “arrangement” is where a discretionary decision is made to accept a payment pattern that takes more than two years to recover arrears
Make sure that you understand the above differences because whatever is negotiated needs to be affordable for the payer.
The CMS will use a principle called the “Debt Steer” to try and have you pay the arrears off within 2 years. You should note that there is no legislative basis whereby the CMS can force you to accept to pay outstanding arrears amounts within 2 years. The debt steer is a CMS policy decision (not a legal requirement).
There is also a process whereby the CMS can make an “arrangement” with you but then go on to introduce something called “parallel action” whereby they use other means (DEO’s, lump sum deduction orders etc) to recover the money in addition to whatever you may have arranged with them. Be aware of it and make sure you complain to the CMS copying your MP if they attempt to do this. It is not unreasonable to expect that negotiations are undertaken by both sides in good faith.
In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.
We speak for the children in Family Law so that, finally, the children have a voice.