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I went through an absolute battle with CMS to get them to stop child maintenance payments when I had 50/50 shared care. Especially as mother gets the child benefits!
I quoted this a few times to them, in writing via secure messaging and post, and, phone! It did take a few months though....
Please refer to The Child Maintenance Service “How We Work Out Child Maintenance, A step-by-step guide”, which is enclosed, see Page 29, which states:
“Q: What happens if the day-to-day care of a child is equal between a
paying parent and a receiving parent?
A: In this situation, the paying parent does not have to pay any childmaintenance for that child.”
The Child Support Maintenance Calculation Regulations 2012, Chapter 4, Special Cases, Clause 50 states that I cannot be classified as a non-resident parent because;
a. I do not provide day to day care to a lesser extent than mother. I have my son 50% of the month, taking him to nursery, medical appointments etc.
b. The Court Order I have provided clearly states that care is 50% between father and mother that there is an equal amount of night and day care between both parents, therefore, the rationale that the parent i.e. the mother receiving child benefit is a “resident parent” is incorrect. The Court Order overrides this as it states both parents have an absolute equal live with arrangement.
I am not a non-resident parent, and determining this by who receives Child Benefit is incorrect as evidence has been provided that there is an absolute equal live with shared care arrangement.
“Parent treated as a non-resident parent in shared care cases
50.—(1) Where the circumstances of a case are that–
(a) an application is made by a person with care under section 4 of the 1991
Act(a); and
(b) the person named in that application as the non-resident parent of the
qualifying child also provides a home for that child (in a different household
from the applicant) and shares the day to day care of that child with the
applicant,
the case is to be treated as a special case for the purposes of the 1991 Act.
(2) For the purposes of this special case, the person mentioned in paragraph (1)(b)
is to be treated as the non-resident parent if, and only if, that person provides day to
day care to a lesser extent than the applicant.
(3) Where the applicant is receiving child benefit in respect of the qualifying child
the applicant is assumed, in the absence of evidence to the contrary, to be providing
day to day care to a greater extent than any other person.”
I went through an absolute battle with CMS to get them to stop child maintenance payments when I had 50/50 shared care. Especially as mother gets the child benefits!
I quoted this a few times to them, in writing via secure messaging and post, and, phone! It did take a few months though....
Please refer to The Child Maintenance Service “How We Work Out Child Maintenance, A step-by-step guide”, which is enclosed, see Page 29, which states:
“Q: What happens if the day-to-day care of a child is equal between a
paying parent and a receiving parent?A: In this situation, the paying parent does not have to pay any childmaintenance for that child.”
The Child Support Maintenance Calculation Regulations 2012, Chapter 4, Special Cases, Clause 50 states that I cannot be classified as a non-resident parent because;
a. I do not provide day to day care to a lesser extent than mother. I have my son 50% of the month, taking him to nursery, medical appointments etc.
b. The Court Order I have provided clearly states that care is 50% between father and mother that there is an equal amount of night and day care between both parents, therefore, the rationale that the parent i.e. the mother receiving child benefit is a “resident parent” is incorrect. The Court Order overrides this as it states both parents have an absolute equal live with arrangement.
I am not a non-resident parent, and determining this by who receives Child Benefit is incorrect as evidence has been provided that there is an absolute equal live with shared care arrangement.
“Parent treated as a non-resident parent in shared care cases
50.—(1) Where the circumstances of a case are that–
(a) an application is made by a person with care under section 4 of the 1991
Act(a); and
(b) the person named in that application as the non-resident parent of the
qualifying child also provides a home for that child (in a different household
from the applicant) and shares the day to day care of that child with the
applicant,the case is to be treated as a special case for the purposes of the 1991 Act.
(2) For the purposes of this special case, the person mentioned in paragraph (1)(b)
is to be treated as the non-resident parent if, and only if, that person provides day to
day care to a lesser extent than the applicant.(3) Where the applicant is receiving child benefit in respect of the qualifying child
the applicant is assumed, in the absence of evidence to the contrary, to be providing
day to day care to a greater extent than any other person.”
Hi All,
I stumbled upon this as I'm currently going through this process and hoping to gain some knowledge and perhaps some support as so far Child Maintenance (CM) have made me feel like a lower lifeform.
I have been going through this and I'm now at the point where my mandatory reconsideration has been rejected and I will need to appeal to try and have legislation 50 applied and it acknowledged that I have 5050 day to day shared care of my daughter.
I provided CM with so much evidence of me providing day to day care in terms of financially, medically, emotionally and just basically in any way I could think, they have however ruled that because I don't have a court order (I tried way back and my daughters mother ignored the letters from a solicitor to which I was told I have good access so shouldn't take it any further as wouldrisk losing that access) and the mother gets Child Benefit that I was not seen to have shared day to day care. They also stated that they took verbal evidence from her that the amount of time I have my daughter was not correct.
They have left me on their shared care band so I get a discount in the amount I pay however my daughters mother still expects me to pay for other items such as school clothes, glasses and other items citing what I pay is the bare minimum.
This isn't about the money for me btw, I have no issue with paying for my child, however I can't afford to be the dad I want to be and also pay Child Maintenance. Ie when her mother refuses to pay for her glasses which she needs to be able to see properly and read under CM rules I don't need to buy her these and if I do I am so voluntarily, however as a father I just can't let my daughter go without and then find myself having to put these kind of purchases ahead of myself being able to eat towards the end of the month.
My question is do I go through the stress of appeal? Has anyone on here been through the appeal process with a tribunal and can provide me with some advice? OR do I just stick to exact rules and pay my CM and no more other than the cost of having my daughter when I have her.
@girldad32 hi, there are many paying parents who have and are currently going through the appeals process for this situation. recommend you join this group: https://www.facebook.com/groups/239699060076601
@girldad32 I am going through this at the moment. I have had a CMS mandatory reconsideration declined purely based on teh number of nights (on paper), my ex and I share the care of our two girls. I have provided pages and pages of evidence to support the fact that we have shared care, I am involved in doctors/dentist appointments, school trips and visit payment plans, purchasing of uniforms, applying for school places, attending parents evenings and open events. I am being pinned down purey on teh number of nights mathmatically my ex has worked out we have the girls. The reality is the opposite of course with me having the care of the girls for the majority of the time - especially duirng the school holidays.
I have appealed the decision and am not waiting for my case to go to a tribunal. I have spoken to my local MP about the terrible service provided by the CMS and am looking to challenge it fully when I am finally given a date for the hearing.
So frustarting. The system is vague, inconsistent, and totally unfair towards the paying payment. In my opinion!
Thanks for this Hubs, your rationale is absolutely spot on.
Could I please also add that when talking or writing to the CMS it is an absolute crapshoot as to who will address your case - you could be talking to an18 year old new joiner who has no idea of the rules, or equally someone who has been there forever and a day who hasnt looked at the regulations for years. It looks like, eventually your evidence got through to someone who knew what they were doing and how to apply the law correctly.
However, for some people, even submitting this kind of evidence will not be enough and a tribunal will be necessary. Do not be put off by this, make sure you submit the case as per in law stated by Hubs above (section 50 of the childrens act), the important point to argue is not that you have equal 50:50 care but that you have equal day to day care.
At this stage you may want to elucidate on exactly what your day to day care consists of. Do you have full access to the child's doctor, dentist and school and attend all appointments for the welfare of your child? Do you have all possessions and physical and emotional support at home at all times? Extracurricular hobbies and the like? Is there any way whatsoever that your ex can claim that they are the "resident parent" as they provide for something you do not? You can also submit a court order and other evidence to back up your claim.
The CMS will then have to respond to your appeal officially with how they calculated maintenance payments and how they have worked out that there is a resident parent. At this stage they will probably go back to your ex for any evidence she has to contradict yours.
Parties are then free to submit any more evidence as they see fit prior to the tribunal, which usually takes many many months to take place.
This is all from personal experience
Persistency is key.
Agreed with above, when I was phoning them, multiple times a week, it would vary. But ultimately I think the letters did the trick.
It’s strange as other gov agencies seem to know the law better than CMS, or CMS on purpose are difficult!
One of my calls to them was along the lines of CMS saying “Yes I know the law but the mother doesn’t work..” !!!!!
hi,
thanks for your advice. so for your 50/50 equal care, how does that translate, how many school runs or nights do you have the kids per week?
I cant talk for hubs, but for me I have our child Monday and Tuesday, ex has Weds and Thurs and we alternate long weekends in term times. There is an equal split of holidays. I attend school for drop offs and pick ups when child lives with me.
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