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Hi, need some advice as can't determine anything from Google up to now.
Divorced three years, two children lived with ex 5 nights and me 2 nights and I paid agreed Child Maintenance.
Eldest moved in with me 18 months ago and through a combination of lies, re-claiming child benefit, not answering phone calls etc took me 12 months to get maintenance from ex and that had to be done via collect and pay as she refused to make voluntary payments and has always been in arrears. My youngest was still staying 2 nights per week up to last year.
Last year Social Services involved due to her behavior but she convinced them I was making it all up, got our youngest to change her information she originally told social services and spent 12 months slagging m e off to eldest.
I took her to court for shared care of youngest (she didn't take me to court for shared care of eldest). Outcome was ex got youngest to write a letter to court at the last minute to say she wanted to see me but not stay over until she was ready. That time was set in the court order to be this month but not happened.
Got a call from CMS last week saying that as she wasn't staying they were increasing my ex's claim as youngest hasn't stayed and they were backdating it 14 months. They stated that the claim nights should have been changed last March but there was a "system error" so they were doing it now regardless and all I could do was appeal. I said that if it should have been done last March and wasn't my ex would have let you know immediately and didn't. At the time CMS stated they won't make any shared care amendments unless there are a final court order to support them.
I know the CMS cannot backdate a claim, but can they backdate a change to a claim? If they can and this results me in having arrears can I request the arrears my ex owes me offsets them?
Thanks
When you say that she can start staying over this month and it was mentioned in the court order, was it written as a recital, or was it part of the order?
I think once a claim is open, they can add arrears if they say that you didn’t update them with any changes. That said I would suggest that you start the process of appeal, it’s their mistake if there was a system error, but they might argue that.
I’m really not sure about whether they can offset her arrears against the ones they say you owe.
If you don’t get anywhere with them, it might be a good idea to go and see your MP... they might be able to help.
Best of luck
Thanks for responding.
The CO says my youngest lives with the mother and spends time with the father and is encouraged to stay over at Christmas (didn't happen). Thereafter it is hoped by early 2019 the youngest will re-commence a regular pattern of staying contact.
The youngest comes every Thursday for dinner and alternate Saturdays for the day. Dates and times change to suit my ex's social life.
I don't know what a recital is.
I am appealing, CMS were made aware of changes due to the court case but didn't act on them and are now blaming a system error.
Thanks
A recital is like promises or expectations and are sadly often not compiled with. Only order parts are really enforceable.
On the actual order, anything written after “it is ordered...” is an order of the court and must be complied with, but anything written under the heading recitals is more like an expectation/ mutual agreement between the parties.
Best of luck with your appeal.
CMS are pretty useless with tech. they encourage me to use my online account. so i uploaded a court order in my account. rang them a week later. they said they printed the order, but the pages came out blank LOL. and said its better if i just post it to them. so thats what i did. i registered with them in march. they took 2 months to work out what im supposed to pay. now they make me pay, including 2 months backdated amount.
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