[Solved] Have i been too soft

Hi trinity

I have a very similar situation very recently. Here is my advice from my experience.

1. Although CMS have gone through various rebrandings - it is *on the whole* the same anti-father (or anti- non resident parent) organisation it was in the 90's - just slightly less so under the most recent changes. A big change is that resident parents can no longer "insist" on collect-and-pay which levies an extra 20% change on the paying parent. There now has to be grounds (some arrears or some history of non-payment) for CMS to collect and impose the extra 20%. This means - new cases are very very likely to be opened as "direct pay" which is basically no charges (except for a one-off £20 charge to open a CMS case).

2. My ex was also hostile - but like you we had managed to keep out of CSA/CMS hands for over 3 years (before she was talked into seeing a solicitor...). When she finally started to get very hostile (I ended up taking her to court over "problems" with access a few months back) I called and opened a case up with CMS myself. This does give you some control over things - but they will still side with the mother (or resident parent) at every opportunity. I have my son on average 2 overnights per week - but when the ex "claimed" that I did not, that was enough "evidence" for CMS to take her version of events as the gospel truth. The front-line staff are trained to basically deal in this way - and if you can prove them wrong, you would be expected to appeal (in very basic terms). My ex chopped and changed her "version" of the truth - depending how things were going with solicitors. Eventually I obtained a Child Arrangements Order (a court order) - which stipulates "no less than 52 overnight stays per year with father".
You will not get a "lower settlement" if you instigate a claim - it should not matter which parent instigates the claim. But you can open a claim - and be prepared - rather than have a claim sprung on you. That is the only real benefit. As I said, be prepared for CMS call handlers (when they speak to your Ex) to basically encourage her to claim you do not have the kids 3 days a week....if she is hostile and takes the bait - they WILL ask you to PROVE that you have the kids for overnight stays (in absence of a court order).

3. Aside from the word of the resident parent, the CMS initially considers quite a limited set "evidence" for shared care (I am not sure about 50/50 care). A statement of arrangements is usually not enough (I assume you have this as part of your divorce). This is not a legally binding document - nor is it a "court order". The CMS would consider an agreement "from a solicitor" (basically a solicitors letter) - as evidence of a "family/mediation agreement", or a court order. If you appeal - you can submit other evidence (this is the point it will be looked at by humans who understand the legislation). The last level of appeal is a Judge - who will look at ALL the evidence presented to them.

4. I work with figures...and can confirm Mojo has it correct. So it sounds like you would be better off with CMS direct and pay. I will say three things. This CMS amount is a "statutory minimum" (whatever that means in reality) - and you obviously do not want to financially disadvantage your kids. Second, once you are on CMS radar - there is no real way to "come off the radar".... so it is not a choice to be taken lightly. Third, my ex used to get money out of me for all sorts of things outside of any agreement outings, trips, extra clothes and basically most things my son wanted, really. When I went to CMS, I made it clear to my Ex - all this would stop if she messed me around via CMS. I personally think, going through CMS has opened my Ex's eyes somewhat, and she has become less hostile as a result (as she now gets less from me, than I gave her as part of family agreement).

5. If, like me, the money you are paying is being used to finance you Ex's lifestyle -rather than provide for kids, there *still* are legit ways to reduce the amount payable through the CMS. Send me a private message for more info - but, in short one is via "variations" (for things like travel cost, etc) and the other way is to reduce your gross weekly salary that the CMS use for their calculations.

Hope all goes well.

...trinity does have a court order that states both children stay overnight with him for three nights a week and as I have mentioned, if he provides the CMS with a copy of the order they should accept it.

As far as the Collect and Pay service, you are correct and it should only be imposed where they have been arrears or proof of late payments... All good, in theory, but we have members that have had this imposed just because the RP has requested it, without there being any history of arrears or late payment.

He can ask for his travelling costs to be taken into account if he opens the case with the CMS and also a reduction for any pensions that he pays into.

I personally think it's better to keep all outside agencies at arms length if at all possible and as he has a court order this does give him some leverage to try and renegotiate a lower amount with the RP directly.

Hi Mojo

Under the newest re-branding/CMS legislation - one parent can no longer simply "decide" they want collect and pay, and thus force the other parent to incur the 20% surcharge. This is because the govt want rid of the old CSA payment-chasing legacy days...and instead want adults (who were adult enough to have kids) to sort out payments between themselves. This was one of the better things to come out of the most recent changes to CMS/CSA.

Unless one parent is already known to CMS/CSA to be in arrears or a non-payer - new cases default to "direct pay".
https://www.citizensadvice.org.uk/relationships/children-and-young-people/child-maintenance/child-maintenance-2012-scheme/child-maintenance-administration/the-2012-child-maintenance-scheme-how-maintenance-is-paid/

From the website above:
"You can only ask to use the Collect & Pay Service if the parent paying maintenance has failed to keep to a Direct Pay arrangement or you have good reason to think they may miss payments."

I do agree with keeping all agencies at arm's length - and in opening the CMS case to "regain control". Both excellent pieces of advice.

Not to be picky - but OP mentioned Statement of Arrangements (SoA) which is not a court order. It is not legally binding. It is simply information for a judge at the time of a divorce. A child arrangements order is a court order - and can only be obtained under the Children Act.

In fact, as of last year I am quite sure SoA are not even filled out (for divorces) regularly. I think this why the CMOptions advice on this board suggest seeking "legal advice" on this matter in particular. In short - perhaps it may depend on the sort of call handler the OP gets - and how "hostile" the RP wants to be. But if the RP wants to "claim" the OP does not have the kids x days a week for overnights - it will go into "dispute" where the onus will be on the NRP to "prove" his case.....guilty until proven innocent - this aspect of CSA has not changed. If he appeals - the result of the appeal may be to "award" a 1/7th reduction...but basically - this is (still) a bit of a grey area of the legislation - and different call handlers combined with different levels of RP hostility may account for the different outcomes.

None of that changes the advice, though - as I agree that the RP will be better off "engaging" with the OP as it sounds like she would be worse off, otherwise.

...as I said, I agree that's what the new rules say....but others here have had a very different experience. The CMS are notorious for getting it wrong, as many here will testify. Often the first point of contact, the advisers at the other end of the line, don't even understand the legislation themselves!

...as I said, I agree that's what the new rules say....but others here have had a very different experience. The CMS are notorious for getting it wrong, as many here will testify. Often the first point of contact, the advisers at the other end of the line, don't even understand the legislation themselves!

Yes, as the OP is speaking specifically about a new case, which would fall under the 2012 rules. But 100% agree with this statement and call handlers.
The call handlers, it seems, are simply trained to side with RP (perhaps for good reason, overall). The appeals process (the point where it gets seen by a judge) sounds a little better - but again it is the same old "guilty until proven innocent"... CSA ala 1990's.

That's great advice thank you

We have a member that advises dealing with them in writing and insisting that all responses from them be put in writing, so after the initial contact is made there is a record of all communication between the claimants and the CMS. So often different call handlers will give conflicting information and even deny what has been quoted previously....get it all in writing, it might be a bit 20th century but it's more effective in keeping them in line!

Hi Mojo,

I think I am the responsible party to whom you refer: in my experience it has been far better to insist on written communication from CSA; once I did that dealings with that agency improved a great deal. I think that the main reason was that instead of dealing with a (very hostile) call handler reading from a script, letters had to be signed off by a grown up, and so tended to be rather better considered. I also found that CSA was very poorly organised, so I could run rings around them by quoting their own letters (from various different authors) and my own correspondence, which they had often lost. There was also a smug satisfaction in being able to quote my letter insisting (very politely) that all correspondence be in writing to the irritating call handlers when they telephoned trying to extort money, and having them resort to shouting at me in frustration (but unable to do anything about it).

CSA will not like this (because it is a debt collection agency with no interest in doing things properly, just in collecting money), but I would strongly recommend people insist all correspondence is made in writing (both ways). This is a perfectly reasonable thing to do, particularly if one can provide evidence of CSA making a mistake (which I suggest will not be difficult).

Best wishes all,

O

One final piece of advice (which originated from these forums, from either Mojo or MrSlim..I cannot recall exactly) is if you query a calculation with CMS/CSA (or want to ask anything of relevance) you will be told by a call-handler "they cannot answer that - and will "get you a call back from your case handler". if you ask to speak to your case handler - you will be told (99% of the time) a) they are not around, b) they are busy and will call you back, c) something of this type. But the advice is insist on speaking to someone (a manager) - and inform them that you will hold.

They will likely come back with "we will get someone to call you back - as no one is around for you to speak to" - just remind them that the call is recorded and ask them to confirm that there is not a single manager at work today.....and remind them again that you cannot be waiting around to take calls that do not materialise.

You will then be placed on hold and someone who can actually look at your file/calculation/details, etc, will take your call.