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Forum Home  →  Discussion  →  Children and childcare  →  Thread

CMS Enquiry

trottmichael
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Citizens Advice Lancashire

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Total Posts: 4

Joined: 26 September 2019

We have a client whose husband is still being made to pay CMS to two children who no longer live with him. They are under the care of his ex partner.  They are 18 and 19 and are both in full time work, the client has clarified that this is definitely full time employment and not any sort of apprenticeship or training scheme. The clt rang CMS to complain as they are currently taking 35% from her husband’s earning as an attachment of earnings. She does accept the client has previous CMS arrears which he accepts he needs to pay however she wishes to challenge the decision that her husband needs to continue paying CMS. She has informed CMS that the children no longer qualifying children for CM purposes and therefore her husband should no longer be liable to pay CMS. However, CMS have advised that as long as the mother of the children is claiming CB, based on this criteria they are qualifying children and her husband still needs to pay CMS. The clt has raised the issue that the mother of the children should not be claiming CB as the children are no longer qualifying children- CMS advised this is not their issue and she would need to raise this with HMRC if she has any concerns about potential fraudulent claims.

The client has since raised this issue with HMRC, and has since asked them to provide some form of proof that CB should not be being claimed and therefore CMS is not payable, so that she can forward this to CMS In the hope that the attachment of earnings will terminate. However, HMRC have, after initially acknowledging the clt’s concerns, since advised that they cannot discuss the matter with her and cannot provide such information. The clt suspects this may be because they have opened a fraud investigation against the mother but HMRC will not confirm whether this is the case or not.

The clt was advised by CA that she can submit a mandatory reconsideration to ask the CMS to look at the decision again. She advised she attempted to do this over the phone several months ago but CMS instead advised to raise a complaint as this would yield a greater chance of success. However, the client has advised the complaint does not seem to be progressing despite several attempts to ask CMS for an update.

I feel inclined to advise the client to submit an MR in writing as she previously tried to do this verbally. However, in the mean time the clt’s financial situation is deteriorating largely because of the large deductions being taken.  Would it be suitable perhaps for the client to contact her local MP as it appears what her husband is being asked to pay is not equitable and just? Failing that does she have any other avenues to go down?

Kind regards

Elliot Kent
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Shelter

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Joined: 14 July 2014

Your client has no rights at all. This situation does not involve her.

Her husband however may wish to challenge the decisions on his continued liability. He could do this either by requesting a revision or supersession. Which avenue is appropriate will depend on the decision making sequence which has occurred. One way or another, his application will need to be considered and he will have a right of appeal.

Adviceguide cites NG v SSWP and JG (CSM) [2015] UKUT 20 (AAC) as authority that the proper question to ask is not whether ChB is in payment but whether it is lawfully in payment. The husband would be able to argue that maintenance is not payable because ChB is not lawfully in payment. He could then take that to appeal and the NG case suggests that HMRC could also be potentially joined as a party to that appeal.

https://www.citizensadvice.org.uk/family/children-and-young-people/child-maintenance/child-maintenance-2012-scheme/child-maintenance-reviews-and-appeals/the-2012-child-maintenance-scheme-challenging-a-decision/

https://www.citizensadvice.org.uk/family/children-and-young-people/child-maintenance/child-maintenance-2012-scheme/child-maintenance-eligibility-and-rules/the-2012-child-maintenance-scheme-how-old-are-the-children/

[ Edited: 23 Oct 2019 at 07:27 pm by Elliot Kent ]
Daphne
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And maybe just worth checking that children aren’t in education - perfectly possibly for them to be working alongside their education in which case child benefit would be payable I believe