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Hi,
ok I have two queries for you learned folk :-
1. I’ve received the swathe of documentation in response to my access request. It is divided in to two groups - ‘Letters’ and ‘Reports’. I have been through the ‘letters’ documents and they are a collection of letters sent between myself and CMS, so not really anything new. The ‘reports’ section I have yet to go through properly but it seems to be a lot of notes made by CMS during the course of my CM case and discussions therein. I know that the CMS made an enquiry to my mortgage provider and also to the company I have some ISA assets with, and probably some other companies to verify the information I gave the CMS as part of my financial disclosure. Should details of these conversations also be included in the material I have received ? They do not seem to be there in the ‘letters’ section but perhaps these details will be embedded in the ‘reports’ section...?
2. Mention has been made in this thread to para 36020 of the CMS guidance document re variations (refer earlier posts for a link). This para talks about ‘projected retirement income’. In an effort to argue my case I have actually received some quotations of this figure, but they tend to give two figures - one if no tax free lump sum is taken and another lower figure if the full 25% lump sum is taken. Would anyone know which applies in this para ? (I would expect it is the higher income figure, I.e. without any tax free lump sum taken)
thanks folks ...
@Will99 2. I would think it is the higher income. I think you could argue the case for excluding the 25% tax-free lump sum but that will complicate things even more.
The lump-sum can be withdrawn at any time after you reach 55. It is tax-free so it is not declared as income for HMRC and is not included in your CMS calculations.
OK so I have made my representations to the chap from the FIU and received a reply. This is now at Mandatory Reconsideration stage so I will now make my arguments to that.
Trying to summarise, the FIU decision is that I should now be assessed on (figures illustrative) :-
1. PAYE income. - no problem there
2. Profit from my property that I let out of £7k. - I do have an argument here because most of that taxable profit is actually mortgage interest costs that are no longer deductible so is not real income at all. Without those costs the 'actual' profit is under the £2,500 threshold for inclusion. Anyway that is another matter that I am already taking to appeal with HMCTS.
3. Notional Income of about £7k - This is calculated on ISA funds that I have accumulated as a repayment vehicle for the interest only mortgage on my property that I let out (and on which my taxable profit is also being assessed) - however I cannot prove that is what they are for. So I am being assessed on this also despite my arguments that these funds should be excluded on the basis of para 34005 bullet 2 in the guidance doc (link below)
4. Pension Contributions of about £10k. - This is despite my arguments that under para 36020 they should be allowed. In response to this argument of mine the FIU are quoting para 36007 which states that 'when considering whether a NRP's pension contributions are excessive, the CMS will consider each case individually taking all relevant information in to account'. I.e. he is using this to override 36020. He is saying that he has looked at the impact on the welfare of my children of my decision to increase my pension contributions by this level, and therefore decided to assess all of these contributions. However he also seems to be under the impression that I have made these contributions of £10k in addition to ploughing all my rental profit of £7k into my pension - this is materially incorrect as this £10k of contributions from my PAYE is how I am ploughing the rental profit in to my pension - it is offsetting that profit and not in addition to it. (I accept that it is more than the rental profit).
So in actual fact for the year in question I have received £7k of additional income from bullet 2, and made £10k of additional pension contributions. The net impact being a reduction in my assessable income for CM of £3k. However the FIU say that because of this my whole £10k pension contributions should be assessed.
This is so clearly biased towards my ex (who worked for the CMS) that I am almost tempted to suspect that she has leaned on her ex-colleagues to favour her !
Also in respect of bullet 3 above - I understand that I cannot actually prove that the ISAs are a repayment vehicle for my property (profit of which I am also assessed on) - but where does the burden of proof lie ? They obviously don't believe me. From their angle they should at least be able to see that if it is indeed true that this is money to repay my mortgage then it would be grossly unfair to assess me on it - because had I chosen a repayment mortgage instead of an interest only mortgage then these funds wouldn't even exist !
This is so stressful, unfair and so so draining....
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1012626/volume-3-variations.pdf
@Will99 This is a crazy response from the FIU, they are quoting 36007, as the reason for refusing, but this is one part of the process, as detailed in the ways of working and should not be the reason for refusing. It is a factor, but so are all the other conditions, such as the FSA table and 36020. They appear to ignore these and use 36007 as a get out of jail card. There is no mention in this condition of the welfare of the children, it makes no reference to this and states, taking all information into account. If this is the case, they need to explain why they have apparently given little, or no consideration to the FSA table and 36020. Where is their consideration of 36013, you are not making the contributions to reduce payments to your child, you are making these contributions in line with this condition, where have they considered this condition in their response. There is also case law in this matter in the upper tribunal. They cannot simply use 36007, as a means to ignore all of the other parts of the process, or what is the point of having them. I expect the same argument and will want them to show each consideration for every condition and not rely on 36007 to simply refuse to allow the pension provisions. 36020 is a part of their process, they need to explain why they have refused, when you have clearly complied with this condition.
@Will99 My reading of 36007 is to allow the caseworker to justify pension contributions that seem excessive without context, not the other way around (e.g. consider the age of the NRP and the amount he will have to retire).
This determination does seem bizarre. All I’ve done is at the age of 57 is put my newly manifested rental profit plus approx £3k extra in to my pension. 36020 says this is ok, and other paras such as 36013 also support me in this action. As a result of my actions my assessable income is £3k lower than last year, yet somehow the FiU have determined that the full £10k of additional pension contributions should be assessed, quoting concerns about my children’s welfare and para 36007 which seems to have some kind of non-specific ‘override clause’ by mention of ‘all available information’.
This decision alone would increase my CM payments compared to last year, but the FIU have also decided that my ISA funds should also be included in a notional income calculation. And this decision also looks strange, because I had a phone conversation with the FIU chap shortly after I made my full financial disclosure and in that conversation he specifically told me that they weren’t interested in the ISA funds as they were for paying down my mortgage on the rental property, and that the only asset that they wanted more information about was another fund of mine. Then when they realised that was a pension fund they said that it couldn’t be included in the notional income variation, but that they now needed to look more closely at my ISA fund again. And now they have changed their view on that and decided to include that in a notional income calculation after all.
This decision was a result of a notional income variation request by my ex, so I have asked them why their decision has also included a decision on diversion of income (pension contributions) - especially as my ex had previously applied for a diversion of income variation re pension contributions and this was rejected. The FIU tell me that they are able to look at all previous variations, even failed requests.
it is almost as if their objective is to find a way to increase my CM liability rather than treat each asset in an objective, independent and fair manner according to their guidance / rules. The more I think about this the more paranoid I am getting that somehow my ex - who was in a senior management position within the CMS for decades - has used her contacts to somehow get a favour and have pressure applied to rule against me. How I deal with that suspicion I don’t know, maybe it is fantasy but I just can’t see that this decision is correct. I know that HMCTS are independent if the MR doesn’t change things. I am also concerned however that the MR will take influence from this FIU decision.
Mmmmm
@Will99 Hi Will99, my experience of the MR process, is a box ticking exercise, current percentage of failed MR for the NRP are circa 85%, but this does improve considerably when you get to a formal hearing. Your ex aside, ( I know that is easy to say), and her previous position in this vile government sponsored extortion racket, they have clearly not followed the process in its entirety, the response that 36007 over rides all of this, is simply crazy, that condition is part of the process. Good luck with the fight mate and do not let them get you down. I have the same fight in 6 weeks, I am 55, paying circa 60% of my salary into a pension, in line with both FSA guidelines and percentage of final salary being allowed and can see they will probably try to use 36007 as a get out of jail card. Is there anything else in your MR that sits with the upper tribunal decision, they need to take into account, such as your health, when you expect to retire and professional advice given.
@jgdad Did you ex told CMS you are diverting income via pension contributions?
@edpacket Hi, not sure on your point, diverting of income as we all know is contained in regulation 71 of the 2012 scheme, so full compliance with the express conditions that are detailed in this regulation, in itself, would not be a diverting of income, which is what I have done. I have complied with all the prerequisites of the regulation, in terms of FSA guidelines, percentage of final pension assumption for my salary. Contained within the Upper Tribunal ruling, I have also complied with the statements made by the judge, in relation to expected retirement age, based on medical history, I have also taken professional advice, again, as stated by the judge. I cannot see why I would inform the CMS that I was diverting income, when I am clearly not. I have met all the requirements for my age and expected retirement date. I have always paid between £600 and £750 per month, for over 12 years, such is the perverse nature of how the CMS see income, company car BIK etc, but never missed a single payment. My son is now 17 and his mother has openly alienated him from me for 2 years, again, the way the CMS works, it actually increased her weekly amount by circa £100. My son will still be receiving over £350 per month, not that he see's much of the cash, as with many NRP's, I only see the holidays, new cars and big house my ex has, whilst I have worked without holidays, as many NRP's have, to ensure that despite my own feelings, I never missed a single payment, as well as paying many hundreds of pounds extra when requested. At 55, I have no pension, so I am starting from nothing, which is the clear rationale behind the FSA's numbers they gave and the internal working processes of the CMS. I am ensuring that I have some sort of income when I retire, I am not taking money from my son, he will still receive a decent amount each month, I am simply making some meagre provision for my later life, when I hope my son will see what I have done over the years.
@jgdad Sorry you misunderstood. I was asking why you are going to court. If she reported you and under what clause. Not questioning your contributions in any way. I am the first to point to the 36020 paragraph regarding pension contributions as I have been contributing a sizable part of my income for years.
@edpacket Sorry edpacket, that reply was not for you, mate it was for someone who sent me a rude PM, stating I was taking money from my son.
My ex has not informed them, but will and I will update for all when I have that fight
@edpacket Thanks mate,
I do expect my ex to request a variation, but she has not yet
The CMS told me they have no issue with my payments, if I had other pensions or had been paying contributions earlier, they would have then questioned my contributions
So the ex, if she contacts them, I hope will get the same response, we have to be able to sort our own futures
Just to repeat an earlier comment that my ex went through all my financial papers so she knows what assets I have. Not that that is an issue because I have never ever hidden any wealth and am an honest open person. I never rifled through her private papers.
Anyway, even though this is now in MR and FAO the Special Client Records team, I have this last day or so been drafting another letter to the FIU chap identifying where his latest reasoning - in my eyes - is either mistaken in fact or not compliant with their own rules / guidance (eg. what justification do you have for ignoring 36020, i.e. how does a drop of £3k in assessible income justify ignoring 36020 on grounds of my childrens welfare and increasing my assessible income by almost £10 ? Etc etc.) I am concerned here that the MR will base its view firstly on what the FIU say so I feel disadvantaged if the FIU have made mistakes.
Hi
My understanding is that it should be. I reckon in the 1st instance they send you limited information to see what you do, id go back to them and challenge them and request a response from them in writing saying why they do not need to provide any more information. (try to be more specific about the type of information you believe they should have provided you, as they will need to respond to you quite specifically). You also want to ensure that their response is from the Data Protection Officer (if some junior employee, confirm with them that the DPO has signed it off, if not ask whether the matter can be escalated to them) Following on from this I would then seek advice and guidance from the Information Commissioners Office (ICO) about this and see what they say as they regulate the rules/legislation around Data Protection and complying with SAR etc..
As the DWP/CMS is a public body I imagine there will be exceptions etc and things they can redact etc all of which I'm sure the ICO can advise on (also ask the ICO whether they can intervene on your behalf and take up the matter with the DWP/CMS if they believe the SAR has not been complied with). ..
All the best.
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