DEO Discussion...

kevin137

OK, so i have been thinking about how many people are forced to pay, and the so-called legislation that allows the CSA to remove funds from your wages using a DEO.

What are peoples thoughts on this, is the legislation that the CSA use fair? Is it necessary? Is it even legal?

I understand that the legislation currently gives them the right to apply (without a court order), a DEO that attaches your income. But what are the implications of that legislation, if that legislation in fact breaches another legislation, should the primary or previous law allow for this to happen without amendment...

By that i mean that the legislation used currently allows them to do this. All apparently above board, with no recourse against them, and no means of appeal...

HOWEVER....

http://www.legislation.gov.uk/ukpga/1996/18/section/13

Sections 13, 1a 1b 2a & 2b clearly state that you cannot withdraw money from your wages without the express permission of the person owed the money as wages... Now as this is ALSO in legislation, and no amendments have been made, surely you have a course of action against your employer for theft.

I know the age old argument is thrown up as being that the Legislation that the CSA use comes 1st and is more important. But that shouldn't carry weight when there is alternative legislation that clearly states that the money cannot be taken from your wages.

DISCUSS....

shegirl

If NRPS didn't refuse to pay for the children they are responsible for then it wouldn't be needed.So yes,it is fair and right!

kevin137

But is it fair and right if it is unlawful? That is the point i am making, are the CSA breaking the LAW by applying DEO's when they appear to not be legally binding. That is the point i am trying to make...

I am not arguing the effects it has on the PWC when unpaid, and i can appreciate that it is a sore subject that many struggle with.

However, if you knew it was illegal for the CSA to do this, would you still say it is right...?

shegirl

But is it really 'illegal'?

kevin137

This is the point though, legislation that interrupts other legislation has to be amended for it to be legal.

So if the legislation for the 1996 Employer Act, would need ot of been amended for the CSA to legally be able to use the Legislation they are currently using, just because they have it, does not mean it is actually legal, it can be looked at by a court and deemed unlawful use of power when it contradicts another legislation that was already in place.

Hence they actually have so many amendments in legislation.

My point is that that it appears unlawful, i cannot find any info on it being challenged and succeeded on, as in no hard evidence, i know it has arisen in court before, but don't know the outcomes.

I challenged the legality of a DEO being used that had an expiry date on it, and it was continued to be used, but that was a mute point by the time it actually got to court as i had moved to a different country permanently.

However, my case involved an injunction against my employer and the CSA which was not possible either, and was obtained, i am wondering what the legal ramifications against employers are. If for example, i decided to take my previous employer to court for breach of contract to recover the deductions which are clearly unlawful just using the Employment Act. It would be down to the Employer to call the CSA in to defend the use of the DEO and how it was implemented. But the judge would have to rule on the evidence before him which is in question, and that is not the legislation for the CSA, it is purely if the Employer broke the law on that causing a loss.

It could be interesting if challenged to see how quickly employers stop taking the lies for gospel that they have the power to fine and enforce deduction when it quite clearly causes them to break another law...

I am in talks with a solicitor now as to the possibility of it being a possible claim. But then, i had numerous falling outs with my employer anyway, and no longer work for them, so have nothing to lose.

It is not about not paying, it is about a fair status quo for all, and the use of DEO's is not a fair and legal option in my mind. If they applied to the court for a DEO then that is and would be legal, and that is already a subject you can't argue. It is the use of DEO's that are applied with NO court order to back them up that would be challengeable.

clearingout

Kevin,
without being legally trained at even a basic level, I'm not sure anyone can really comment on whether or not a DEO issued by the CSA without a court order is technically legal. The CSA presumably has this power in an attempt to free up the courts from dealing with something so 'routine' and to start the flow of maintenance to the child within as short a timescale as possible. It can take months to get into court which is not acceptable when children are going without.

If it were genuinely illegal or in someway the system usurps the legal status quo, I can only presume that it would have been challenged a long time ago.

The legal arguments are, I agree, interesting. But we're not dealing in legal philosophy: we're dealing in children's lives and in many cases, receiving maintenance can make the difference to a child having to give up favourite activities, keeping warm or maintaining a roof over their heads. I'm not sure anyone should seek to delay that happening just because they can.

kevin137

It's hypothetical at this stage, and if i did go ahead and do it, it would not be to avoid payment as that is done and dealt with, what it would be, is too teach the CSA a lesson in following the law they preach so highly at people who have NO choice but to deal with them...!

And more to the point, all the money taken was paid to the CSA, my argument is that the CSA use a loophole and threats to MAKE an employer play ball. Like when i queried the validity of my DEO that had an expiry date, they chose to take advise from the CSA who are not legally trained and that is why an injunction was granted.

This would (in my case anyway) be against my old employer for the recovery of the money, if they chose to take legal action against the CSA after as a result of being "TOLD" to deduct it, that is between them....!

N79

kevin137 wrote: »

OK, so i have been thinking about how many people are forced to pay, and the so-called legislation that allows the CSA to remove funds from your wages using a DEO.

What are peoples thoughts on this, is the legislation that the CSA use fair? Is it necessary? Is it even legal?

I understand that the legislation currently gives them the right to apply (without a court order), a DEO that attaches your income. But what are the implications of that legislation, if that legislation in fact breaches another legislation, should the primary or previous law allow for this to happen without amendment...

By that i mean that the legislation used currently allows them to do this. All apparently above board, with no recourse against them, and no means of appeal...

HOWEVER....

http://www.legislation.gov.uk/ukpga/1996/18/section/13

Sections 13, 1a 1b 2a & 2b clearly state that you cannot withdraw money from your wages without the express permission of the person owed the money as wages... Now as this is ALSO in legislation, and no amendments have been made, surely you have a course of action against your employer for theft.

I know the age old argument is thrown up as being that the Legislation that the CSA use comes 1st and is more important. But that shouldn't carry weight when there is alternative legislation that clearly states that the money cannot be taken from your wages.

DISCUSS....

Kevin

You need to read legislation as a whole body, not cherry picking lines you like look of.

So S13 1a says

(1)An employer shall not make a deduction from wages of a worker employed by him unless—
(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

so if there is a statutory provision then the employer can make deductions. This is reinforced in S14(3) which says

Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

So as you can see if there is a statutory basis for a public authority to require a deduction from wages then that is not contrary to the ERA.

So is there such a statutory basis? The answer is yes. The statutory basis is provided by the Child Support (Collection and Enforcement) Regulations 1992 part 3 (specifically s12, but all of s8 to s25 are relevant as they spell out the rules to be applied and the rights and obligations of the employer, employee and the Secretary of State)

So your employers defence would simply be that they were relying on s13(1)a and s14(3) and you will end up with an expensive legal bill. If they failed to apply the DEO then they would be breaking the law. By applying it they are complying with the law.

kevin137

N79 wrote: »

Kevin

You need to read legislation as a whole body, not cherry picking lines you like look of.

So S13 1a says

(1)An employer shall not make a deduction from wages of a worker employed by him unless—
(a)the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

so if there is a statutory provision then the employer can make deductions. This is reinforced in S14(3) which says

Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

So as you can see if there is a statutory basis for a public authority to require a deduction from wages then that is not contrary to the ERA.

So is there such a statutory basis? The answer is yes. The statutory basis is provided by the Child Support (Collection and Enforcement) Regulations 1992 part 3 (specifically s12, but all of s8 to s25 are relevant as they spell out the rules to be applied and the rights and obligations of the employer, employee and the Secretary of State)

So your employers defence would simply be that they were relying on s13(1)a and s14(3) and you will end up with an expensive legal bill. If they failed to apply the DEO then they would be breaking the law. By applying it they are complying with the law.

And how is or was the CSA a public body, for it to be a public body then it would not or could not be a business with shareholders... Is this right...?

And as has already proved to to be the case, they where until recently anyway 6 registered businesses at various locations over the country with CCJ's registered against them.

Having already taken an injunction for 15 months previously, the court agreed they where not a government agency and where registered businesses. Even the CSA barrister had to admit in court that it would appear that is the case on paper for the purposes of the court hearing.

And as that court already agreed this, it would be very hard for it to argue it now surely...

Fission

kevin137 wrote: »

url]http://www.legislation.gov.uk/ukpga/1996/18/section/13[/url]

Sections 13, 1a 1b 2a & 2b clearly state that you cannot withdraw money from your wages without the express permission of the person owed the money as wages... Now as this is ALSO in legislation, and no amendments have been made, surely you have a course of action against your employer for theft.

Read the legislation you cited:

13 - Right not to suffer unauthorised deductions.

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

All DEOs clearly fall under 13 (1) (a) in that they are required and authorised by statute (the Child Support Act).

Some will also fall under 13 (1) (b) in that they are authorised by the worker (the voluntary DEO).

Even if they didn't fall under the voluntary provision, they'd be caught under the "required and authorised" provision.

PreludeForTimeFeelers

Looks like my response was lost while the site was playing up last night. The CSA has never been a business and has never had shareholders. It was part of the DWP from '90 to '08, the Govt then created CMEC to run CSA as a public body, and since August this year it has been back under the DWP wing.