CSA Using Child Tax Credits in Calculation???... Interesting info...

wayne0

OK,

ive got a copy of the CSA Online Proceedures...

and this one looks interesting...

wouldnt you consider that using child tax credits in a calculation affects the welfare of a relevant child?

Procedural Release: 153, 10/12/2012 Topic Updated: 153, 10/12/2012

[IMG]file:///D:/Users/Wayne/Desktop/csa%20online%20procedures/CMEC153/pr1/aa/arrow_start.gif[/IMG]Recording Discretionary Decisions And Welfare Of The Child Consideration


Overview

Child Support legislation places a range of duties on the Secretary of State, which requires caseworkers (acting on behalf of the Secretary of State) to act in specific ways. Where legislation places a duty on the Secretary of State, caseworkers have no discretion to act in a different way.

For example, Section 11 of the Child Support Act 1991 requires the Secretary of State to calculate a maintenance liability in accordance with the statutory rules set out in Schedule 1 of the Act and the supporting regulations. There is some, but very little opportunity for applying discretion in the calculation of maintenance liability.

Statutory duties can usually be identified by words in primary and secondary legislation (Acts and Regulations) such as ‘the Secretary of State must / will / should)’.

However, legislation also contains statutory powers, which allow caseworkers to decide on the most appropriate action to take. This may include deciding not to take particular action in certain circumstances.

When making this type of decision, caseworkers must take into account all the circumstances of the case, including the welfare of any child(ren) that would be affected if the action being considered is taken / not taken.

Because these powers require caseworkers to exercise their discretion when making the decision they are called discretionary decisions.

Discretionary powers can usually be identified by words in primary and secondary legislation such as ‘the Secretary of State may / can’ as opposed to ‘the Secretary of State should / must’.

For example, Section 29 of the Child Support Act 1991 provides the Secretary of State with a statutory power to collect child maintenance. Because the Section reads “…the Secretary of State may..” - whether and how we collect maintenance is at the Secretary of State’s discretion.

Discretionary decisions must be taken in accordance with basic public law principles of legality, rationality and fairness. If not, they can be challenged by Judicial Review. It is therefore essential that discretionary decisions are reasonable, unbiased and clearly recorded.

Examples of Discretionary Decisions

Discretionary decisions occur throughout the child maintenance process and individual Online Business Procedures indicate where a discretionary decision is required. The following list provides some examples of discretionary decisions, but is not exhaustive. If you are not sure whether a particular decision requires you to exercise discretion, you should consult the relevant Online Business Procedure in the first instance and seek advice from your Team Leader if needed.

Examples

Imposing an Interim Maintenance Assessment (Old rules only)
Making a Default Maintenance Decision (New rules only)
Considering deprivation of Income
Considering deferred debt
Deciding whether a Variation is Just and Equitable (New rules only)
Deciding whether a Departure is Just and Equitable (Old rules only)
Deciding to take court action to establish paternity
Deciding whether to offer to arrange DNA testing to resolve a post MC paternity dispute
Deciding to disclose information collected for child support purposes
Deciding to close a case when a person with care or private parent with care fails to cooperate
Deciding whether to require information from a third party under the Child Support Information Regulations 2008
Deciding whether to take enforcement action and if so, which is the most appropriate action to take
Deciding to impose a Deduction from Earnings Order
Calculating an overpayment recovery schedule
Making a decision under Regulation 8 of the Child Support (Management of Payments and Arrears) Regulations 2009
Calculating an arrears schedule
Calculating an other liabilities schedule
Deciding to initiate Bailiff Action
Deciding to register a County Court Judgement
Deciding to make a Third Party Debt Order
Deciding to make an application for a Charging Order
Deciding to instigate an Order of Sale
Deciding to apply for a Bill of Inhibition
Deciding to apply for Commitment or Disqualification from Driving
Deciding whether or not a reimbursement is appropriate
Deciding whether to accept/reject direct payments


Discretionary Decision Making: What needs to be considered?

When making a discretionary decision, you need to consider all the circumstances of the case / clients and decide the most appropriate course of action, taking into account:

• <li class="kadov-p-Cbullet">the Welfare of any Children that the decision potentially affects
  <li class="kadov-p-Cbullet">the Purpose and Basic Principles of the Child Support Act 1991
• other relevant factors

The following sections provide guidance on these considerations.

If you have any concerns about making a discretionary decision, for example, if there are unusual or particularly complex circumstances involved, you should always consider discussing the case with your Team Leader in the first instance, and seeking advice from the Advice and Guidance Team where appropriate. If advice is required, from the Advice and Guidance Team, it is essential you seek this as soon as possible and before discussing details with a client.

Welfare of Child Consideration

When making any discretionary decision, it is essential to consider the welfare of any child that may be affected by the outcome. This is a legal requirement and it is important to record the fact that welfare of the child issues have been considered in all cases.

The legal requirement is set out in Section 2 of the Child Support Act 1991, which states:

‘Where, in any case which falls to be dealt with under this Act,

the Secretary of State is considering the exercise of any discretionary power conferred by this Act, it shall have regard to the welfare of any child likely to be affected by its decision.’

Child Support Act 1991 Section 2

Considering the Welfare of the Child means reviewing any relevant information and evidence and determining whether the relevant discretionary decision if it is made will have a negative impact on any child that it potentially affects. If so, it may be appropriate for a different discretionary decision to be made.

However, it is essential to remember that the Act only requires us to have regard to welfare of the child issues. It is not required to be the first or paramount consideration and in practice, welfare of the child decisions will often have little effect on the decisions being made.

Which Children should be Considered?


Welfare of the child consideration is not restricted to the Qualifying Child(ren). Other children potentially affected might include:

• <li class="kadov-p-Cbullet">other children of the non-resident parent
  <li class="kadov-p-Cbullet">other children of the parent with care
• children of the non-resident parent’s / parent with care’s new partner who live in the same household

Remember: one or both of the parents may be a child within the meaning of the Act. These cases will require handling sensitively.
It is important to identify all children that are potentially affected by a discretionary decision and to consider the impact it will have in relation to them each individually.


Relevant Evidence

There is no obligation to pro-actively seek evidence relating to welfare of the child issues. However, where relevant evidence / information is held on our records or submitted by either of the parties, it must be fully considered.
Where information or evidence relating to welfare of child issues has been submitted by either party, it may be appropriate to make further enquiries, including contacting the other party for their comments. Whether it is necessary to contact other parties and who you may need to contact will depend on the particular circumstances of your case.

You may need to contact any of the following - please note this list is not exhaustive. You must also ensure any contact complies with relevant legislation (i.e. Child Support Act 1991 (disclosure of information), Data Protection Act 1988 etc):

• <li class="kadov-p-Cbullet">all parties involved in the case
  <li class="kadov-p-Cbullet">other parents with care (where there are multiple parents with care)
• parties who are in a position to provide relevant information (for example non-resident parent’s new partner)

If you are uncertain whether further enquiries should be made / whether contact is appropriate you should always consider discussing the case with your Team Leader in the first instance, seeking advice from the Advice and Guidance Team where appropriate.

To be relevant, information / evidence must show either:

• <li class="kadov-p-Cbullet">that the discretionary decision being made will have a negative impact on a child that it potentially affects; or
• that the discretionary decision being made will have a positive impact on a child that it potentially affects

Evidence of this type will be relevant where the interests of different children affected by the decision need to be weighed against each other.


Negative and Positive Impacts on the Welfare of a Child

Welfare of the child consideration should involve taking into account the physical, mental, emotional, educational and social needs of all the children that the relevant discretionary decision will potentially affect.

Caseworkers will need to consider whether there is evidence to suggest that the discretionary decision would have a negative impact on these needs, which goes beyond the usual and inevitable impact of a maintenance assessment on a non-resident parent’s available income.

A negative impact might be shown in the following circumstances:

• <li class="kadov-p-Cbullet1">contact: between any child the decision affects and either parent For example, where there is evidence to show that a particular course of action would prevent a non-resident parent visiting their child. However, any asserted negative impact that this would have on the child’s emotional well-being would need to be weighed against the positive impacts of maintenance being collected.
  <li class="kadov-p-Cbullet1">living Standards: of any child that the decision affects For these purposes it will not be sufficient for a non-resident parent to simply argue that a decision affecting their available resources will have a detrimental impact on their general ability to provide for a child. There must be evidence to show that the impact on the non-resident parent’s resources will have a particularly detrimental effect on their ability to meet a child’s specific needs.
  <li class="kadov-p-Cbullet1">relationships: e.g. between a child’s parents For example, where a parent with care and non-resident parent have reconciled and continued action to recover arrears might place the relationship under strain.
• general health / well being: including any negative impact on the child’s physical or emotional well-being.

Please note that this list is not intended to be exhaustive. Where evidence is provided to indicate that the welfare of a child may be affected in a way that is not covered by this list, it should be taken into account as appropriate.

Positive Impacts of the Decision

Any negative impact of the decision must be weighed against the positive impacts that it may have. A decision may have both negative and positive impacts for the same child. Alternatively, a decision may have a negative impact on one child, but a positive impact for another.

Where the interests of children conflict in this way, it is necessary to weigh up all the circumstances of the case carefully. One child should not be unduly disadvantaged in favour of another. The best outcome will be one that provides the highest possible protection for all of the children potentially affected. As a minimum, the aim should be to ensure that each child’s day to day basic living requirements can be met.

Weighing Welfare of Child Considerations against Other Relevant Factors

Welfare of the child issues are not the sole, or even the primary, consideration in discretionary decision making. The full circumstances of the case need to be taken into account and consideration must also be given to the purpose and basic principles of the Act and the advantages of receiving child maintenance. There may also be other relevant factors to take into account, such as the particular circumstances of the non-resident parent at the time the relevant decision is being made.

The Purpose and Basic Principles of the Act


The purpose of the Child Support Act 1991 is to make sure that parents maintain their children whenever they can. The basic principles as outlined in Section 1 of the Child Support Act 1991 are that:

• <li class="kadov-p-Cbullet">Non-resident parents should pay maintenance as assessed by application of the statutory maintenance formula; and
  <li class="kadov-p-Cbullet">it is the responsibility of the non-resident parent to make such payments; and
• both parents have a duty to maintain their children

In making a discretionary decision, you should also take into account the fact that regularly receiving maintenance increases the range of choices open to the parent with care. For example, it may help them to make informed financial decisions or to take up employment.


Any Other Relevant Factors


It is not possible to provide a comprehensive list of the range of considerations that may arise in making a discretionary decision. However, in addition to the specific considerations that have been highlighted above, you may also need to take into account a range of other relevant factors, including:

• <li class="kadov-p-Cbullet1">any Policy Steers on the exercise of discretion in particular circumstances;
  <li class="kadov-p-Cbullet1">where a statutory power is very wide, the Secretary of State may have given a Policy Steer as to how that discretion is to be exercised, for example when deciding whether a parent should have maintenance reimbursed when paternity is disproved. You should follow guidance but bear in mind that there may be exceptional cases where it would not be fair or reasonable to do so. Another example is the aim in the Debt Steer to achieve fully recovery in two years.
• the circumstances at the time the relevant decision is being considered, particularly where evidence has been provided to suggest that these will change in the near future

Recording Discretionary Decisions

Any discretionary decision to act / not act in a particular way can be challenged by Judicial Review. It is therefore essential that all discretionary decisions are properly recorded, including the reasons for the decision and any particular evidence / information that has been taken into account.

Discretionary Decisions should be recorded in Freetext (CS2), Notepad (CSCS) or Clerical Case Database (CCD). It is important that a full decision is recorded. Where this will exceed 500 characters, a continuation entry should be used.

There is no requirement to complete a CSF063 to record the decision clerically in addition to this.

Please select this link for further guidance on when a CSF050 should be completed: [URL="file:///D:/Users/Wayne/Desktop/csa%20online%20procedures/CMEC153/pr1/a5/a5_00715.htm"]Decision Making And Evidence Verification - Documentation[/URL]

Please ensure the decision is recorded on the relevant account, for example a decision relating to the non-resident parent’s Relevant Other Child is recorded on the non-resident parent’s account.

Entries must always start with: "Please be aware that the children listed below may not relate to or be known to this case participant."

Discretionary decisions must demonstrate that the welfare of any child(ren) has been fully considered. Any discretionary decision must therefore specifically refer to this.

Please note: Welfare of the child is an integral part of any discretionary decision. It is not a separate decision. Welfare of the child needs to be included as part of the relevant discretionary decision, which must demonstrate:

• <li class="kadov-p-Cbullet">that welfare of the child issues have been considered; and
• any impact that welfare of the child consideration has had on the decision made

The detail needed will often depend on whether the evidence suggests that the discretionary decision will have a negative impact on the welfare of a child or not.

Recording Welfare of Child Consideration: No Negative Impact

A standard form of wording can be used to record the welfare of the child consideration in cases where there is no evidence to suggest that the discretionary decision will have an unduly negative impact on:

• <li class="kadov-p-Cbullet">contact between either parent and any child affected by the decision;
  <li class="kadov-p-Cbullet">the living standards of any child affected by the decision;
  <li class="kadov-p-Cbullet">the relationship between any child affected by the decision and their parent(s) / siblings;
• any other aspect of the child’s general health / well being

In these circumstances, a standard entry can be recorded in Freetext (CS2) / Notepad (CSCS) / Clerical case database (CCD) as follows:

Entries must always start with: "Please be aware that the children listed below may not relate to or be known to this case participant."

Insert details of the discretionary decision being made

(e.g. Decision to impose a DEO)

"In making the above decision, I have considered all the available evidence and information, taking into account Section 2 of the Child Support Act 1991 and operational guidance on this issue.

I am satisfied that there is no evidence to suggest the decision being made will have a negative impact on the welfare of (insert names of all children whose welfare has been considered)."

Recording Welfare of Child Consideration: Negative Impact Identified

Full details of the welfare of the child consideration must be recorded in all cases where there is evidence to suggest that the discretionary decision being made will have a negative impact on a child that it affects.

The fact that a potentially negative impact has been identified does not mean that a different discretionary decision will necessarily be made, but full details must be recorded of:

• <li class="kadov-p-Cbullet">the names of the children that have been considered;
  <li class="kadov-p-Cbullet">the reasons underlying the decision;
  <li class="kadov-p-Cbullet">the evidence that has been considered; and
• the weight that has been given to it

Entries must always start with: "Please be aware that the children listed below may not relate to or be known to this case participant."

Discretionary Decisions: Examples

The examples below are provided to illustrate how welfare of the child and the other considerations could apply in a range of cases.

Even though they relate to specific areas of work they are only intended provide an overview of some of the things you may need to consider when making this type of decision.

As discretionary decisions are based on the circumstances of the individual case, they are not intended to cover everything you may need to consider.

Example 1

A non-resident parent applies for a variation for contact costs of £40 per week to reduce his maintenance calculation of £50.
The parent with care receives Income Based Jobseeker’s Allowance and the qualifying child is 17 years old. There are no children in the non-resident parent’s household.
The parent with care agrees that the contact costs are incurred, but submits newspapers cuttings showing that the non-resident parent recently won £60,000 on the National Lottery and stated he intended to spend the money on luxury items.
In considering whether the reduction in liability is Just and Equitable to all parties, you would need to consider any evidence that the non-resident parent has other financial resources available to them from which the costs claimed could be met, in addition to the welfare of the qualifying child and other relevant considerations.
Although maintaining contact between the non-resident parent and the qualifying child is in the child’s interest, in this situation, you would need to take into account the fact that the non-resident parent’s contact costs could be met from their lottery winnings. You would also need to take into account the risk that reducing the calculation could cause hardship to the parent with care, and adversely affect the welfare of the qualifying child.

wayne0

continued....

Example 2

Consideration is being given to whether bailiff action is appropriate. This could include seizure of the family car. The non-resident parent has submitted evidence that he lives some distance away from the qualifying child and the family car is essential for him to have continuing contact with the qualifying child.
The purpose of the Act is to ensure financial provision for Qualifying Children. However, continuing contact with the non-resident parent will normally be in the child’s best interests. There is therefore a potential conflict between the purpose of the Act and the welfare of a child potentially affected by the decision being considered.
You would need to take all the circumstances into account, including whether there is a reasonable alternative means of transport available for contact to continue. Relevant additional information here might include any illness / disability of a child, which would make public transport unsuitable. Depending on the circumstances, it may be appropriate to exclude the family car from bailiff action.



Example 3

Arrears have accrued over an extended period and you are considering making a Deduction Order against the non-resident parent’s savings account. However, the non-resident parent has previously informed us that his income has reduced due to a temporary change of circumstances, and he is using his savings for day to day expenditure. There are two relevant other children in the non-resident parent’s household.
It is a basic principle of the Act that non-resident parent’s have a duty to make the payments that are due, and this includes the prompt payment of any arrears. However, in this situation there is evidence to suggest that the welfare of the relevant other children may be affected by a decision to make a Deduction Order.
You would need to take into account the effect of making a deduction from the non-resident parent’s savings against his ability to make financial provision for the relevant other children. You would also need to take any information known about the Qualifying Child(ren)’s situation into account. In this type of case, the interests of different children are conflicting and you will need to try and achieve an outcome that provides the highest level of protection for each child’s day to day welfare.
If the non-resident parent is paying his current maintenance assessment, it may be appropriate to impose a Deduction Order for an amount below the full arrears total, so that the non-resident parent retains some funds for day to day expenditure. Alternatively, it may be appropriate to defer further recovery of the arrears until his financial situation improves.



Example 4

Consideration is being given to whether bailiff action is appropriate. The non-resident parent has previously informed you that their new partner and children are not aware of the Child Support case. If bailiffs attend the non-resident parent’s address, this information may come to light and have a negative impact on the non-resident parent’s relationship with their new partner and children.
There is information to suggest that this action might have a negative impact on a child that it potentially affects. However, the purpose of the Act is to make financial provision for Qualifying Children and enforcement powers are in place to give effect to this.
In these circumstances, it is entirely within the non-resident parent’s ability to prevent the negative impact identified by reaching an acceptable repayment agreement. There would need to be very exceptional factors, such as severe ill health or a more efficient enforcement option, for considerations of this type to affect the decision in these circumstances.



Example 5

You are considering making an application for Commitment. The non-resident parent has submitted evidence suggesting the Qualifying Child is aware of this possibility and is very distressed by it.
The Act includes strong enforcement measures to ensure that non-resident parent’s meet their maintenance obligations. Considering welfare of the child requires us to take into account the possibility of emotional distress to any child affected by our decisions, but this is a difficult issue from an evidentiary point of view and it is important to remember that welfare of the child includes both emotional and practical well being. While the child’s emotional welfare may be affected by continued Committal action, their practical well being will normally be affected by continued non compliance.
Any suggestion that a decision will have a negative impact on a child’s emotional welfare would need to be considered very carefully. In appropriate cases, supporting evidence may be required, e.g. where a non-resident parent claims that the child suffers from specific behavioural / emotional problems. Supporting evidence in these circumstances might include evidence from a medical professional and / or confirmation from the parent with care.
Please note: the weight given to any evidence may differ depending on which stage of Commitment you are at. For example: different considerations may apply if the decision you are making is more / less likely to lead to actual imprisonment.



Revising Discretionary Decisions

You should follow normal revisions guidance/procedures.

However, please note: It is well established in case law that different caseworkers can legitimately make a different discretionary decision based on the same facts / evidence.

To allow revisions solely on the basis that different caseworker would have reached a different conclusion, based on the same facts / evidence, would undermine this principal.

To constitute an ‘Official Error’ the original caseworker would have had to have acted unlawfully or drawn conclusions so flawed as to defy logic.

Please select this link for further guidance on: [URL="file:///D:/Users/Wayne/Desktop/csa%20online%20procedures/CMEC153/pr1/s2/s2_90474.htm"]Revisions[/URL] [IMG]file:///D:/Users/Wayne/Desktop/csa%20online%20procedures/CMEC153/pr1/aa/arrow_finish.gif[/IMG]

PreludeForTimeFeelers

The use of tax credits as a source of income isn't a discretionary decision though.

kevin137

PreludeForTimeFeelers wrote: »

The use of tax credits as a source of income isn't a discretionary decision though.

Do they assess and use CTC...??? I thought they only used WTC...

wayne0

kevin137 wrote: »

Do they assess and use CTC...??? I thought they only used WTC...

nope kevin, its both ctc and working tax credit....

this is what my issue is with my CSA calculation. I dont have an issue with my wages / WTC being assessed... Its the fact that CSA calculate the money which is payable to my wife (although as a couple claim) to care for my children who live with us.

wayne0

PreludeForTimeFeelers wrote: »

The use of tax credits as a source of income isn't a discretionary decision though.

the CSA CAN use their discretion to NOT include it as part of the NRP's income, if the decision to include it can have a detrimental effect on ANY child...

(The post above is actually a copy of the CSA's Guidance information.)

Employment Credits

12.



Payments made by way of employment credits under section 2(1) of the

Employment and Training Act 1973 to a non-resident parent who is participating in a

scheme arranged under section 2(2) of the Employment and Training Act 1973 and

known as the New Deal 50 plus shall be treated as the income of the non-resident

parent, at the rate payable at the effective date.

13.



2




2Child tax credit

13A.



Payments made by way of the child tax credit to a non-resident parent or his

partner at the rate payable at the effective date.

It does not state: "MUST" or "Should" be considered as part of the NRP's income. Therefore DISCRETION IS ALLOWED!

Statutory duties can usually be identified by words in primary and secondary legislation (Acts and Regulations) such as ‘the Secretary of State must / will / should)’.

Pretty clear: and direct from their own policy and proceedures information.

hairbrain05

we've been debating this issue also!

surely if CTC or WTC are received, then the family receiving has been assessed and it has been deemed appropriate for them to receive..

for it to then be included in a CSA calculator.. doesn't that mean that a portion of any CTC/WTC received by that family could potentially be going to the PWC.. who most likely is already in receipt of their own CTC/WTC claim!??

wayne0

I Do agree that all NRP's need to support their children. But then what about the children who live with the NRP.

Fine: A child should have the same support as they had before their parents split up... cool.

so if i didnt split up with my ex, i wouldnt have kids with my new wife. therefore i wouldnt recieve CTC for the two children with new wife. on that very logic, and principle that CSA is founded: can you not state that CTC shouldnt be included in the assesment.

Look at the legislation also...

Its clearly a "lets f..k with this one"
previous legislation as regards to child tax credits:

　

　

PART IV

TAX CREDITS

[FONT=Times New Roman PS,Times New Roman PS][FONT=Times New Roman PS,Times New Roman PS]Working families' tax credit[/FONT][/FONT]
[FONT=Times New Roman PS,Times New Roman PS]



[/FONT]
11.

[FONT=Times New Roman PSMT,Times New Roman PSMT][FONT=Times New Roman PSMT,Times New Roman PSMT]—(1) Subject to sub-paragraphs (2) and (3), payments by way of working families' tax creditunder section 128 of the Contributions and Benefits Act(41), shall be treated as the income of thenon-resident parent where he has qualified for them by his engagement in, and normal engagementin, remunerative work, at the rate payable at the effective date.[/FONT][/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT][FONT=Times New Roman PSMT,Times New Roman PSMT](2) Where working families' tax credit is payable and the amount which is payable has beencalculated by reference to the weekly earnings of the non-resident parent and another person—[/FONT][/FONT]
[FONT=Times New Roman PSMT,Times New Roman PSMT]
[FONT=Times New Roman PSMT,Times New Roman PSMT]　[/FONT]
[FONT=Times New Roman PSMT,Times New Roman PSMT]　[/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT]where during the period which is used by the Inland Revenue to calculate his income thenormal weekly earnings (as determined in accordance with Chapter II of Part IV of theFamily Credit (General) Regulations 1987(42)) of that parent exceed those of the otherperson, the amount payable by way of working families' tax credit shall be treated as theincome of that parent;[/FONT]
[FONT=Times New Roman PSMT,Times New Roman PSMT]　[/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT]where during that period the normal weekly earnings of that parent equal those of the otherperson, half of the amount payable by way of working families' tax credit shall be treatedas the income of that parent; and[/FONT]
[FONT=Times New Roman PSMT,Times New Roman PSMT]　[/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT]where during that period the normal weekly earnings of that parent are less than those ofthat other person, the amount payable by way of working families' tax credit shall not betreated as the income of that parent.[/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT](3) Where—[/FONT]
[FONT=Times New Roman PSMT,Times New Roman PSMT]　[/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT]working families' tax credit is in payment; and[/FONT]
[FONT=Times New Roman PSMT,Times New Roman PSMT]　[/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT]not later than the effective date the person, or, if more than one, each of the personsby reference to whose engagement, and normal engagement, in remunerative work thatpayment has been calculated is no longer the partner of the person to whom that paymentis made,[/FONT]

[FONT=Times New Roman PSMT,Times New Roman PSMT]the payment in question shall only be treated as the income of the non-resident parent in questionwhere he is in receipt of it.[/FONT]







[/FONT]

note: You dont qualify for child tax credits by working... you qualify for CTC even if you do not work, you only need to have children who you support/care for on the main day to day basis... (are basically a PWC).

Also, the fact that my wife recieves the payment (is the one in reciept of the payment) would mean it couldnt previously be touched either...

quite amazing also, that the legislation clearly states the NRP is a male... perhaps this is clearly a case of sexual discrimination...

what would of been wrong with stating

tax credit to a non-resident parent or the non-resident parents's partner at the rate payable at the effective date.

HoneyNutLoop

Wayne,
The guidance you copied and pasted makes it clear that only some decisions are discretionary. It even starts by saying :

"Child Support legislation places a range of duties on the Secretary of State, which requires caseworkers (acting on behalf of the Secretary of State) to act in specific ways. Where legislation places a duty on the Secretary of State, caseworkers have no discretion to act in a different way.

For example, Section 11 of the Child Support Act 1991 requires the Secretary of State to calculate a maintenance liability in accordance with the statutory rules set out in Schedule 1 of the Act and the supporting regulations. There is some, but very little opportunity for applying discretion in the calculation of maintenance liability."

And you also seem to have skimmed over this:

"Considering the Welfare of the Child means reviewing any relevant information and evidence and determining whether the relevant discretionary decision if it is made will have a negative impact on any child that it potentially affects. If so, it may be appropriate for a different discretionary decision to be made.

However, it is essential to remember that the Act only requires us to have regard to welfare of the child issues. It is not required to be the first or paramount consideration and in practice, welfare of the child decisions will often have little effect on the decisions being made."

And this:
"Welfare of the child issues are not the sole, or even the primary, consideration in discretionary decision making. The full circumstances of the case need to be taken into account and consideration must also be given to the purpose and basic principles of the Act and the advantages of receiving child maintenance. There may also be other relevant factors to take into account, such as the particular circumstances of the non-resident parent at the time the relevant decision is being made."

It also gives examples of some forms of discretionary decisions. As prelude says, how they calculate income isn't discretionary, it's mandatory.

Two things about the law you've quoted. Firstly it's out of date as it references "working family tax credits" which was replaced by the current tax credit system in april 2003. Secondly, you've missed off the start of schedule 1 which is as follows:
Net weekly income
1. Net weekly income means the aggregate of the net weekly income of the non- resident parent provided for in this Schedule.
[...]

It then goes on to explain the five parts of income that should make up the aggregate. It doesn't repeat this statement at the beginning of each part because that would be redundant.

http://www.dwp.gov.uk/docs/o-8701.pdf
Up do date version.

And regarding what you've said about the variations regulations, reg 6 makes it clear it can only be given under one of the regulated grounds:

Rejection of an application following preliminary consideration

6.—(1) The Secretary of State may, on completing the preliminary consideration, reject an application for a variation (and proceed to make his decision on the application for a maintenance calculation, or to revise or supersede a decision under section 16 or 17 of the Act, without the variation, or not to revise or supersede a decision under section 16 or 17 of the Act, as the case may be) if one of the circumstances in paragraph (2) applies.
(2) The circumstances are—
(a)the application has been made in one of the circumstances to which regulation 7 applies;
(b)the application is made—
(i)on a ground in paragraph 2 of Schedule 4B to the Act (special expenses) and the amount of the special expenses, or the aggregate amount of those expenses, as the case may be, does not exceed the relevant threshold provided for in regulation 15;
(ii)on a ground in paragraph 3 of that Schedule (property or capital transfers) and the value of the property or capital transferred does not exceed the minimum value in regulation 16(4); or
(iii)on a ground referred to in regulation 18 (assets) and the value of the assets does not exceed the figure in regulation 18(3)(a), or on a ground in regulation 19(1) (income not taken into account) and the amount of the income does not exceed the figure in regulation 19(2);
(c)a request under regulation 8 has not been complied with by the applicant and the Secretary of State is not able to determine the application without the information requested; or
(d)the Secretary of State is satisfied, on the information or evidence available to him, that the application would not be agreed to, including where, although a ground is stated, the facts alleged in the application would not bring the case within the prescription of the relevant ground in these Regulations.

wayne0

ok. STATATORY DUTY, as mentioned, is referenced with the words such as MUST, Shall, Should...

CTC section does not include this....

and as for the out of date legislation... I was pointing out how the CSA have altered the legislation, obviously hastily, to screw over nrp's who pay, even further

Look at the legislation also...

Its clearly a "lets f..k with this one"
previous legislation as regards to child tax credits:

previous legislation clearly states two points:

the payment cannot be assessed as income if:
1) If the nrp doesnt qualify for the payment via working (is this not the case with CTC?... CTC is not an additional amount for working, its ONLY qualifying factor is to have children - although it does reduce with income, just like JSA/ESA/IncomeSupport which are prescribed benefits)
2)If the payment isnt made to the NRP (IE: is paid to NRP'sPartner) it cannot be assessed as income of the nrp.

wayne0

ok.....

When making this type of decision, caseworkers must take into account all the circumstances of the case, including the welfare of any child(ren) that would be affected if the action being considered is taken / not taken.

and...

Calculation or estimate







6.















—(1) Subject to 1sub-paragraphs (3) and (4), the amount of earnings to be

taken into account for the purpose of calculating net income shall be calculated or

estimated by reference to the average earnings at the relevant week having regard to

such evidence as is available in relation to that person’s earnings during such period

as appears appropriate to the Secretary of State, beginning not earlier than 8 weeks

before the relevant week and ending not later than the date of the calculation, and for

the purposes of the calculation or estimate he may consider evidence of that person’s

cumulative earnings during the period beginning with the start of the year of assessment

(within the meaning of section 832 of the Income and Corporation Taxes Act 1988) in

which the relevant week falls and ending with a date no later than the date when the

calculation is made.

(2)








2

(3) Where a person’s earnings during the period of 52 weeks ending with the relevant

week include a bonus or commission








3 which is paid separately from, or in relation

to a longer period than, the other earnings with which it is paid, the amount of that

bonus or commission shall be determined for the purposes of the calculation of earnings

by aggregating any such payments received in that period and dividing by 52.

(4) Where a calculation would, but for this sub-paragraph, produce an amount which,

in the opinion of the Secretary of State, does not accurately reflect the normal amount

of the earnings of the person in question, such earnings, or any part of them, shall be

calculated by reference to such other period as may, in the particular case, enable the

normal weekly earnings of that person to be determined more accurately, and for this

purpose the Secretary of State shall have regard to–

(a) the earnings received, or due to be received from any employment in which

the person in question is engaged, has been engaged or is due to be engaged;

and

(b) the duration and pattern, or

I have the most recent version of CSA Law Thanks.


look at each section...the word "SHALL" infers a statatory duty upon the SoS. The CTC section includes no such word... therefore it is open to DISCRETION! (CTC is not included when the NRP is on a prescribed benefit - therefore it is clearly not a statatory duty to include CTC in the calculation.)