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Exact equal no of nights a year.
Morning All,
I have just started discussions with the CMS for them to close my case. I have had equal shared care since Sept 2019, but they denied my request back then stating because my ex partner receives child benefit she is classed as the main carer and I need a court order to prove otherwise. Went to court two weeks ago and got the court order needed stating the equal number of days and nights my son is in my care. I sent this to the CMS asking for my case to be closed and they have replied with a letter saying:
'Unfortunately, we cannot accept that there has been change to the level of shared care for this child because:'
and that's it , with no other explanation or no other telephone communication with me. Its like they have not even bothered to look at it, , there has only been 48 hours between them receiving my court order and them replying.
I then spoke with them again via the telephone after I had received this letter and they said they will pass this on to the next team to get reviewed again and could take up to 30 days. I will also reply with a letter stating why my case should be closed based on the below:
The Child Maintenance Service, How We Work Out Child Maintenance, A step-by-step guide, Page 29:
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 child maintenance for that child.
and
CMS Regulations 2012, Chapter 4, Special Cases, Clause 50
I was just wondering if anyone has got any more advice on how I should approach them and what I need to get my case closed.
Any advice would be welcome
I have had a very similar journey.
You have a few options, one is to apply for Child Benefit yourself, which if awarded to you would potentially mean that you could then open a CMS case against your ex. In my case I have two kids and the CHB was award one child to me and one to my ex. They may argue that deciding who the "parent with care" comes down to a discretionary decision, which isn't reassuring when half the staff don't know the relevant guidelines, however they have very clear guidelines around discretionary decisions and have to give you a detailed reason as to why they made decision of this kind. They will always apply a CHB presumption however if this is challenged they are supposed to consider all other evidence provided, such as who the children are registered at the Dr's with etc.
The other option is to beat them with their own law! There is some very clear legislation/ guidelines regarding shared care, non resident parent and the use of CHB as an indicator of "main carer". Below is a quote taken from the CMS's staff guidance regarding CHB and parent with care. Further down I've shared a couple of links and outlined the sections I used to help get my case closed. Sorry for the massive block of text, but I learnt a lot going through this and want to help as many people as I can!
Also I highly recommend requesting copies of all correspondence (telephone conversations and letters) between yourself and the CMS, you do this via a Rights of Access Request. I did this and it was much easier to show the CMS what they had done wrong!
Child Benefit is in payment, but parent with care status is disputed
Remember: where the person elects not to receive child benefit payments that
person is to be treated as receiving child benefit
If who should be treated as the parent with care is disputed, you should:
- presume that whoever is receiving Child Benefit for the qualifying child/ren is providing the greatest level of day to day care for them; and
- treat that person as the parent with care unless evidence is received to prove that this is not the case;
- the onus will be on the party disputing who should be treated as the parent with care to provide this evidence;refer to the meaning of home and the meaning of day to day care for further advice.
- refer to the meaning of home and the meaning of day to day care (below) for further advice.
The other party should be given the opportunity to comment on any evidence submitted and to provide evidence of their own.
NOTe: if the evidence shows that both parties are effectively providing equeal day to day care of the qualifying child/ren. then neither parent can be treated as the non- resident parent. In that event, you would need to close the case or reject the application.
Legislation can be found here https://www.legislation.gov.uk The relevant legislation sections;
The Child Support Maintenance Calculation Regulations 2012: Regulation 50
Section 3 of the Child Support Act 1991.
Section 42 of the Child Support Act 1991.
As for guidelines, here's two links to the full CMS staff policy and guidelines. https://voiceofthechild.org.uk/kb/child-maintenance-service-policy-law-and-decision-making-guidance/
https://voiceofthechild.org.uk/kb/cms-full-set-policies-procedures/
You want to look at the following sections;
CMS Policy, Law and Decision making guidance:Shared Care: Decision Making Guidance: Identifying Shared Care
CMS Policy, Law and Decision Making Guidance: Evidence and Decision Making
CMS Policy, Law and Decision making guidance: Evidence and Decision making: Discretionary Decisions-Decision making guidance
CMS Policy, Law and Decision making guidance:Decision Making Guidance: Who is a Non-resident Parent?
I have a 6 year old daughter and my wife left me 2 years ago because she just didn't love me. I was 50/50 share with my daughter for 18months and didn't pay a penny in maintenance as I would go halves on everything. Only 4 months ago my ex decided I could only have my daughter when she worked (2nights out of 5) and wanted £150 off me. 2 months later I got my 50/50 back but she still wants the money as she says she is struggling. Do I have to pay?
@dede I'm very keen on discussing this with you, I am about to start the "mandatory reconsideration" process and any tips from dads like you on the appeal process would surely prove beneficial. If you are open to a quick chat please message me.
@itsme2022 happy to help and share thoughts - being new on here, i cant DM yet for some reason. if you're happy to chat here?
hi,
they asked for a court order and now they have it. i would keep phoning them and ask them for an update. they can take their time. if they still disagree, they have a complaints procedure, so go down that route.
Hello everyone, I've just received a letter which states that they agree I've got 50/50 shared care but I still have to pay the EX as she gets CB. Has anyone found tips or advice online on what to include in an appeal to the tribunal. Has anyone represented themselves? Any help/ advice would be appreciated. Thank you in advance.
Hi Saj
Did you receive an answer to this? I also have a Court Order and 50/50 day to day shared care. (week on week off)
Hi,
- Do you have a court order? If there's agreement for equal 5050 day to day care, then you shouldn't be paying maintenance.
Here is info on appeals process https://www.nacsa.co.uk/appeals-tribunals
You could also open child benefit counter claim
@bill337 No court order, Both CMS and CB office have agreed through the correspondence that has been sent that 50/50care is in place.
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