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Hi this is my first post, sorry its so long but I felt to get the best advice I needed to provide a fair amount of detail!
I recently discovered this site while researching ways to fend off the CMS and thought this community might be able to help me.
I divorced my ex in 2014, the custody of my kids (now 13 and 10) was laid out in an Agreement of Court- It was never made into an order, This agreement states a split of care which equates to 50/50 Equal Shared care. One of the reasons it was never made into to an order is it included my step son (ex's son from her first marriage) and I had no legal parental responsibility which clouded matters. We also had a financial order put in place regarding maintenance which I have adhered to until recently. Given everything thats been going on I let my ex know that I was unable to keep up the payments at the agreed rate (this was in March). This was met with a threat to reduce access and an application to the CMS "when things go back to normal"(This is not the first time she has made similar threats). She then refused to communicate with me and will now only do so via the kids or my wife. I contacted my lawyer and exchanged correspondence with her via counsel stating I didn't consent to changes in our agreement which she then agreed not to change, amongst several untruths and mudslinging from her. Unfortunately during all this my step son (15) decided he no longer wanted to spend time with or have any contact with me and this was not addressed either her or his bio father so I have no tangible reason as to why.
I was furloughed for 3 months then was on JSA on for 3 months, during this time I applied to the CMS myself to oust the financial order. The CMS was calculated at NIL rate due to the access and being in receipt of JSA. During lockdown we shared the children in 5 day blocks-5 with me/5 with her. Normally its an alternating arrangement that equals 7 nights each for every 14 night period which we returned to after lockdown.
Since returning to work (October), I informed the CMS, expecting them to rule that there was no case for maintenance due to the equal care in line with Regulation 50. As you can guess this didn't happen and not only that they based my earnings on a P60 from TWO years ago. They then of course told me (and my ex) that I was liable for £586 per month. I contacted the CMS to tell them my earnings were incorrect and gave them evidence of my new income. Instead of recalculating as my income had varied by more then 25% they triggered a Mandatory Reconsideration and ruled that their original decision stood. I have now filed a Notice of Appeal and am awaiting the CMS response to this. I have been trying to also prove my equal shared care. I have spent hours on the phone with the CMS, I get passed from pillar to post, they fob me off and are often actively hostile (I have made a formal complaint about the service and involved my MP). I did however get told that as my case was in dispute that I wasn't required to pay the amount calculated.
Over Christmas I got message from the CMS that my ex had applied for Collect and Pay-if this application had been accepted I would have been paying out over £700! I have managed to fend off Collect and Pay for now.
Despite the CMS claiming that Child Benefit isn't an indictor of "primary parent" when there's other evidence, they quite obviously do use it as a guide. I previously was over the earning threshold to receive monies from claiming and so didn't. I have made this clear to the CMS to no avail. I have now made an application to Child Benefit. In the past I have tried to be the bigger person, to appease and not rock the boat. Unfortunately this means my ex now thinks she calls the shots and has even told my kids they are "lucky" to spend so much time with me.
My questions are this;
I have provided the CMS with my Agreement of Court already. What other evidence can I provide of my equal shared care? (I have been collecting receipts, keeping a diary and screen-shotting texts).
Does anyone know if the Agreement of Court can be submitted for the purposes of filing a Consent Order? It's not signed as such- it was made in a court in front of a Judge but its NOT an order.
In terms of the Tribunal, I am appealing based on the principle that the CMS have disregarded their own legalisation (Regulation 50) when calculating my provision of care. Does anyone have any experience of the Tribunal service in this capacity? How can I back up my claim?
Does anyone have any general advice that will help my cause? Any legal avenues I can pursue? I simply wish to parent my children for the time I have them without essentially being charged to do so by my ex!
Thank you
hi,
am surprised CMS ignored the agreement of court paper. usually they accept evidence of anything court-related. Hopefully your appeal/tribunal resolves it.
It would seem that even though agreement of court clearly shows the number of nights is equal between parents, this apparently isn't proof of equal day to day care. I've tried pointing out to the CMS that if I have my kids half the time surely I must be providing care for that time...
Hi
When you rang and discussed the matter, what explanations have they given?
I guess their response will be the basis for your appeal and I'm just curious as to their explanation in case there is anything other dads can learn from your experience.?
Usually when you inform them of a new job they would initially use the last P60 held (that may be from 2 years ago for you with HMRC) but after 2 wage slips (they calculate an average to factor in any overtime and bonuses) they should then send you a new calculation once they have received these from HMRC, with Xmas and everything that should be the new year for you as your Nov pay slip will show early Dec but with Xmas and covid I imagine there are delays... they will then see the 25% difference and adjust your payments accordingly? However whilst your initial payments for nov/dec will be higher, when they recalculate they will be lower as they should factor in the overpayments.
The above is how its been explained to me by CMS and I've read the same on this forum.
Thanks
The explanations vary depending on who I speak to, some of the staff are receptive and helpful, other are borderline rude.
From what I've been told, you're right in terms of the financial assessment. The biggest issue is that the calculation they made is equal to 20% of my new income and I cannot afford to hand over that sum and pay for my own household. I provided the CMS with the P45 from my old job, payslips for my furlough, proof of Job Seekers and a written statement of employment regarding my new salary. According to the CMS that should have been enough to base a calculation on but thats not what they did and when I questioned it, it triggered a Mandatory Reconsideration. I spoke to the CMS last just before Christmas and have been told they can make a recalculation now they have three months payslips so thats a start.
The bigger issue for me isn't so much income as the calculation of Equal Shared Care. Every time I speak to the CMS I mention the relevant legalisation and not one of their staff has heard of it. I don't quite know how to get them to assess me based on something the staff seem totally unaware of! This is the basis of my appeal to the Tribunal service; They have neglected to apply the perimeters of their own legalisation to my case.
The legalisation is Regulation 50. Which I'm sure you're aware of (Think I first learned of it on this site!) but goes as follows;
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(1); 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 have found a better success writing my issues/requests on the portal, plus attaching evidence, rather than speaking by phone.
In my experience phone has lead to all of the things you state, plus them going down a route to conclusion, based on a misunderstanding.
Not sure if others found the same.
I appreciate your point however I've tried using the portal and in my experience it regularly doesn't allow uploads. I've never been able to access the details of my case, I'm always met with an error message, I don't know if this is particular to me or whether other users have had this issue?
I find I get a more immediate response on the phone, though its not necessarily followed through. I've even resorted to sending evidence by post as well as the portal.
I've never used the portal, but my I would suggest you speak to them to get that sorted out so that there is a proper record of communications, otherwise they could simply deny anything was said.
They apparently record every call. I have been told to take the time of every call and the names and locations of the staff spoken to so that it can be traced. I have requested transcripts/recordings of all the calls I've had with the CMS. I have informed them the portal doesn't work properly but to no avail.
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