Is it true?

Mips

Is it true with the CSA that a contact order, whether that is being adhered to or not, is the basis for a shared care claim?

So even if the contact order wasnt happening, and the children werent staying with the NRP... the CSA wouldnt be interested? It would have to be amended?

Crellow4

No it's not true. Shared care is based on what is actually happening - not what should be happening or what the parents would like to happen. Keep scrupulous records on a calendar, of when the child/children have overnight contact, in the event of dispute.

DUTR

Crellow4 wrote: »

No it's not true. Shared care is based on what is actually happening - not what should be happening or what the parents would like to happen. Keep scrupulous records on a calendar, of when the child/children have overnight contact, in the event of dispute.

From people I know it is true, a mother I know has full care of her special needs son, but the nrp gets the care allowance. As per other thread it is what the csa accept as evidence.

Crellow4

The CSA will not merely accept the contact order - if either parent feels an incorrect decision has been made they should exercise their dispute rights and progress to an independent appeal.

shegirl

DUTR wrote: »

From people I know it is true, a mother I know has full care of her special needs son, but the nrp gets the care allowance. As per other thread it is what the csa accept as evidence.

The nrp must be spending a minimum of 35 hours a week caring for his son then,which will be why.

DUTR

shegirl wrote: »

The nrp must be spending a minimum of 35 hours a week caring for his son then,which will be why.

Nope, he spent 0 to 2 hrs , she had to go for months and months of investigation to get the allowance transferred to her, and that wasn't without backlash. Couple of my mates had difficulty getting their contributions adjusted accordingly, it was no easy sweep. It's dissapointing that so many replies tell the OP what they want to hear rather than what is really possibly awaiting them, it's never one size fits all.

shegirl

DUTR wrote: »

Nope, he spent 0 to 2 hrs , she had to go for months and months of investigation to get the allowance transferred to her, and that wasn't without backlash. Couple of my mates had difficulty getting their contributions adjusted accordingly, it was no easy sweep. It's dissapointing that so many replies tell the OP what they want to hear rather than what is really possibly awaiting them, it's never one size fits all.

Then he was making a fraudulent benefit claim.That's slightly different!

DUTR

shegirl wrote: »

Then he was making a fraudulent benefit claim.That's slightly different!

Just as the PWC's claim overnights are not occuring when they do, my point still stands, it's of little help telling the OP's what they want to hear rather than the struggle they may face.

Crellow4

I'm not telling the OP what they want to hear - the simple answer to the question posed is 'no' - other forms if 'evidence' are sought. Shared care decisions are desperately hard to make - the decision maker has to weigh up what both parents are saying, clearly they can't both be telling the truth! The best advice I can give is to be scrupulously honest about when the overnight contact takes place, keep a contemporaneous calendar and make notes to jog your memory. If the decision goes against you, request a mandatory reconsideration, if the decision is still not favourable then appeal and someone else will weigh up the evidence.

DUTR

Crellow4 wrote: »

I'm not telling the OP what they want to hear - the simple answer to the question posed is 'no' - other forms if 'evidence' are sought. Shared care decisions are desperately hard to make - the decision maker has to weigh up what both parents are saying, clearly they can't both be telling the truth! The best advice I can give is to be scrupulously honest about when the overnight contact takes place, keep a contemporaneous calendar and make notes to jog your memory. If the decision goes against you, request a mandatory reconsideration, if the decision is still not favourable then appeal and someone else will weigh up the evidence.

I see two questions being asked by the OP
"Is it true with the CSA that a contact order, whether that is being adhered to or not, is the basis for a shared care claim?

The answer is simply yes as they work on the fact presented to them.

So even if the contact order wasnt happening, and the children werent staying with the NRP... the CSA wouldnt be interested? It would have to be amended?

They maybe interested after the appeals you suggest, although truthfully they are not immediately always succesful.

It does not lead to say the OP's appeal will be accepted or rejected as we are not the one who will make the decision.
Perhaps I read your replies as if you (some) are saying it is a quick easy process that is always succesful, where as posts on the board from various posters in the past suggest that it will more often than not be a long drawn out further battle, this rarely seems to be included in the replies.
I know with my aquaintance she had to have long investigation and many visits for over 12 months before the complaint was accepted in her favour, as far as I know her child's father was not charged for fraud likewise the PWCs that falsely claim there is no regular overnight stays to gain maximum contributions have not been charged with fraud either.
Only 'Absolutely' posting on baliff action seemes to have resolved quickly like less than a week so much so it's hard to believe it's true when so many have years of struggle to recieve what is due or contribute the right amount.

HoneyNutLoop

Crellow4 wrote: »

No it's not true. Shared care is based on what is actually happening - not what should be happening or what the parents would like to happen. Keep scrupulous records on a calendar, of when the child/children have overnight contact, in the event of dispute.

The quoted is true for CS1 and CS2 but not CS3. The legislation for CS1 and 2 is about the pattern of care that has taken place in the 12 months prior to the effective date determining the shared care allowance. For CS3 there has been an intentional shift to shared care being based on the agreed pattern of care for the 12 months after the effective date.

Link to CS3 legislation: http://www.legislation.gov.uk/uksi/2012/2677/regulation/46/made

(2) Subject to paragraph (3), the determination is to be based on the number of nights for which the non-resident parent is expected to have the care of the qualifying child overnight during the 12 months beginning with the effective date of the relevant calculation decision

CS3 legislation also gives an evidential hierarchy and includes provision for CMS to make an assumed shared care decision in certain circumstances:

(4) When making a determination under paragraphs (1) to (3) the Secretary of State must consider—
(a)the terms of any agreement made between the parties or of any court order providing for contact between the non-resident parent and the qualifying child; or
(b)if there is no agreement or court order, whether a pattern of shared care has already been established over the past 12 months (or such other period as the Secretary of State considers appropriate in the circumstances of the case).

[...]

Assumption as to number of nights of shared care
47. (1) This regulation applies where the Secretary of State is required to make a determination under regulation 46 for the purposes of a calculation decision.
(2) If it appears to the Secretary of State that—
(a)the parties agree in principle that the care of a qualifying child is to be shared during the period mentioned in regulation 46(2) or (3) (decrease for shared care); but
(b)there is insufficient evidence to make that determination on the basis set out in regulation 46(4) (for example because the parties have not yet agreed the pattern or frequency or the evidence as to a past pattern is disputed),
the Secretary of State may make the decision on the basis of an assumption that the non-resident parent is to have the care of the child overnight for one night per week.
(3) Where the Secretary of State makes a decision under paragraph (2) the assumption applies until an application is made under section 17 of the 1991 Act for a supersession of that decision and the evidence provided is sufficient to enable a determination to be made on the basis set out in regulation 46(4).

So for CS3, if parents don't agree about the pattern of care intended to take place over the next 12 months but there is a court order in place, that would be accepted. The legislation is clear that CMS will only look at evidence of previous shared care patterns if the parents cannot agree about what is intended to take place over the next 12 months and there is no court order.

The consultation and government response makes it clear that this shift in legislation is intentional:
https://www.google.co.uk/url?sa=t&source=web&rct=j&ei=GB6nUqjjH4r17AaK2IGQDQ&url=https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/220379/cmec-maintenance-calculation-regulations-2012-technical-consultation.pdf&cd=1&ved=0CCwQFjAA&usg=AFQjCNGoQaMQenOKVWSMIppRvskiIl_4sw&sig2=gkhvp5hufIrt8wDvO9Xo6Q Page 16

https://www.google.co.uk/url?sa=t&source=web&rct=j&ei=GB6nUqjjH4r17AaK2IGQDQ&url=https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/184678/cmec-calc-regs-consultation-response.pdf&cd=2&ved=0CC4QFjAB&usg=AFQjCNGeKHj-gLys9KeNUSCCWAXe1Sulaw&sig2=xfRXtoHt7MDmTmmbltE5UQ Pages 5-7

Shared care will always have the potential to be a difficult area parents do not agree. The difficulty is made greater by the absence of any means of recording what care has been provided that does not have the potential for abuse. Even a court order agreement may not be followed exactly and this may result in disputes at the end of the year if parents do not have the same recollections of the amount of shared care. Evidence of agreed shared care Is therefore likely to be more reliable and is therefore the preferred method of assessing such care.

Based on the shift in emphasis and legislation I would suggest calendars will become a thing of the past for CS3, as they neither provide evidence of what level of shared care has been agreed for the next 12 months, nor often provide an agreed picture of the level of care that has taken place in the last 12 months.