Child Support, Pensions and Social Security Bill - continued        House of Lords
PART I, CHILD SUPPORT - continued

back to previous text
 
 
Disqualification from driving
Disqualification from driving.     16. - (1) After section 39 of the 1991 Act, there shall be inserted-
 
 
"Commitment to prison and disqualification from driving.     39A. - (1) Where the Secretary of State has sought-
 
    (a) to levy an amount by distress under this Act; or
 
    (b) to recover an amount by virtue of section 36,

and that amount, or any portion of it, remains unpaid he may apply to a magistrates' court under this section.
      (2) An application under this section is for whichever the court considers appropriate in all the circumstances of-
 
 
    (a) the issue of a warrant committing the liable person to prison; or
 
    (b) an order for him to be disqualified from holding or obtaining a driving licence.
      (3) On any such application the court shall (in the presence of the liable person) inquire as to-
 
 
    (a) whether he needs a driving licence to earn his living;
 
    (b) his means; and
 
    (c) whether there has been wilful refusal or culpable neglect on his part.
      (4) The Secretary of State may make representations to the court as to whether he thinks it more appropriate to commit the liable person to prison or to disqualify him from holding or obtaining a driving licence; and the liable person may reply to those representations.
 
      (5) In this section and section 40B, "driving licence" means a licence to drive a motor vehicle granted under Part III of the Road Traffic Act 1988.
 
      (6) In the application to Scotland of this section-
 
 
    (a) in subsection (1)-
 
      (i) for paragraphs (a) and (b) substitute "to recover an amount by virtue of section 38";
 
      (ii) for "apply to a magistrates' court" substitute ", by summary application, apply to the sheriff";
 
    (b) any reference to the court includes a reference to the sheriff."
      (2) In section 40 of the 1991 Act, subsections (1) and (2) shall be omitted.
 
      (3) Before section 41 of the 1991 Act, there shall be inserted-
 
 
"Disqualification from driving: further provision.     40B. - (1) If, but only if, the court is of the opinion that there has been wilful refusal or culpable neglect on the part of the liable person, it may-
 
    (a) order him to be disqualified, for such period specified in the order but not exceeding two years as it thinks fit, from holding or obtaining a driving licence (a "disqualification order"); or
 
    (b) make a disqualification order but suspend its operation until such time and on such conditions (if any) as it thinks just.
      (2) The court may not take action under both section 40 and this section.
 
      (3) A disqualification order must state the amount in respect of which it is made, which is to be the aggregate of-
 
 
    (a) the amount mentioned in section 35(1), or so much of it as remains outstanding; and
 
    (b) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the costs of the application under section 39A.
      (4) A court which makes a disqualification order shall require the person to whom it relates to produce any driving licence held by him, and its counterpart (within the meaning of section 108(1) of the Road Traffic Act 1988).
 
      (5) On an application by the Secretary of State or the liable person, the court-
 
 
    (a) may make an order substituting a shorter period of disqualification, or make an order revoking the disqualification order, if part of the amount referred to in subsection (3) (the "amount due") is paid to any person authorised to receive it; and
 
    (b) must make an order revoking the disqualification order if all of the amount due is so paid.
      (6) The Secretary of State may make representations to the court as to the amount which should be paid before it would be appropriate to make an order revoking the disqualification order under subsection (5)(a), and the person liable may reply to those representations.
 
      (7) The Secretary of State may make a further application under section 39A if the amount due has not been paid in full when the period of disqualification specified in the disqualification order expires.
 
      (8) Where a court-
 
 
    (a) makes a disqualification order;
 
    (b) makes an order under subsection (5); or
 
    (c) allows an appeal against a disqualification order,

it shall send notice of that fact to the Secretary of State; and the notice shall contain such particulars and be sent in such manner and to such address as the Secretary of State may determine.
      (9) Where a court makes a disqualification order, it shall also send the driving licence and its counterpart, on their being produced to the court, to the Secretary of State at such address as he may determine.
 
      (10) The following are to have effect as if the reference to section 44 of the Powers of Criminal Courts Act 1973 included a reference to this section-
 
 
    (a) section 164(5) of the Road Traffic Act 1988 (power of constables to require production of driving licence etc.);
 
    (b) section 27(3) of the Road Traffic Offenders Act 1988 (offence of failing to produce a licence).
      (11) Section 80 of the Magistrates' Courts Act 1980 (application of money found on defaulter) shall apply in relation to a disqualification order under this section in relation to a liable person as it applies in relation to the enforcement of a sum mentioned in subsection (1) of that section.
 
      (12) The Secretary of State may by regulations make provision in relation to disqualification orders corresponding to the provision he may make under section 40(11).
 
      (13) In the application to Scotland of this section-
 
 
    (a) in subsection (2) for "section 40" substitute "section 40A";
 
    (b) in subsection (3) for paragraph (a) substitute-
    "(a) the appropriate amount under section 38;";
 
    (c) in subsection (10), for "section 44 of the Powers of Criminal Courts Act 1973" substitute "section 248 of the Criminal Procedure (Scotland) Act 1995";
 
    (d) subsection (11) is omitted; and
 
    (e) for subsection (12) substitute-
 
    "(12) The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make, in relation to disqualification orders, provision corresponding to that which may be made by virtue of section 40A(10)." "
 
Civil imprisonment: Scotland.     17. - (1) In section 40 of the 1991 Act, for subsections (12) to (14) there shall be substituted-
 
 
    "(12) This section does not apply to Scotland."
 
      (2) After section 40 there shall be inserted-
 
 
"Commitment to prison: Scotland.     40A. - (1) Where the Secretary of State has sought to recover an amount by virtue of section 38(1), and that amount, or any portion of it, remains unpaid, he may by summary application apply to the sheriff for the issue of a warrant committing the liable person to prison.
 
    (2) On any such application, the sheriff shall, in the presence of the liable person, inquire as to-
 
 
    (a) the liable person's means; and
 
    (b) whether there has been wilful refusal or culpable neglect on his part.
      (3) If, but only if, the sheriff is satisfied that there has been wilful refusal or culpable neglect on the part of the liable person he may-
 
 
    (a) issue a warrant for his committal to prison; or
 
    (b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as he thinks just.
      (4) A warrant under this section-
 
 
    (a) shall be made in respect of an amount equal to the aggregate of-
 
      (i) the appropriate amount under section 38; and
 
      (ii) an amount (determined in accordance with regulations made by the Secretary of State) in respect of the expenses of commitment; and
 
    (b) shall state that amount.
      (5) No warrant may be issued under this section against a person who is under the age of 18.
 
      (6) A warrant issued under this section shall order the liable person-
 
 
    (a) to be imprisoned for a specified period; but
 
    (b) to be released (unless he is in custody for some other reason) on payment of the amount stated in the warrant.
      (7) The maximum period of imprisonment which may be imposed by virtue of subsection (6) is six weeks.
 
      (8) The Secretary of State may by regulations make provision for the period of imprisonment specified in any warrant issued under this section to be reduced where there is part payment of the amount in respect of which the warrant was issued.
 
      (9) A warrant issued under this section may be directed to such person as the sheriff thinks fit.
 
      (10) The power of the Court of Session by Act of Sederunt to regulate the procedure and practice in civil proceedings in the sheriff court shall include power to make provision-
 
 
    (a) as to the form of any warrant issued under this section;
 
    (b) allowing an application under this section to be renewed where no warrant is issued or term of imprisonment is fixed;
 
    (c) that a statement in writing to the effect that wages of any amount have been paid to the liable person during any period, purporting to be signed by or on behalf of his employer, shall be sufficient evidence of the facts stated;
 
    (d) that, for the purposes of enabling an inquiry to be made as to the liable person's conduct and means, the sheriff may issue a citation to him to appear before the sheriff and (if he does not obey) may issue a warrant for his arrest;
 
    (e) that for the purpose of enabling such an inquiry, the sheriff may issue a warrant for the liable person's arrest without issuing a citation;
 
    (f) as to the execution of a warrant of arrest."
 
Financial penalties
Financial penalties.     18. - (1) In section 41 of the 1991 Act (arrears of child support maintenance), subsections (3) to (5) (which provide for the payment of interest on arrears) shall cease to have effect.
 
      (2) For section 41A of the 1991 Act (arrears: alternative to interest payments) there shall be substituted-
 
 
"Penalty payments.     41A. - (1) The Secretary of State may by regulations make provision for the payment to him by non-resident parents who are in arrears with payments of child support maintenance of penalty payments determined in accordance with the regulations.
 
    (2) The amount of a penalty payment in respect of any week may not exceed 25% of the amount of child support maintenance payable for that week, but otherwise is to be determined by the Secretary of State in his absolute discretion.
 
      (3) The liability of a non-resident parent to make a penalty payment does not affect his liability to pay the arrears of child support maintenance concerned.
 
      (4) Regulations under subsection (1) may, in particular, make provision-
 
 
    (a) as to the time at which a penalty payment is to be payable;
 
    (b) for the Secretary of State to waive a penalty payment, or part of it.
      (5) The provisions of this Act with respect to-
 
 
    (a) the collection of child support maintenance;
 
    (b) the enforcement of an obligation to pay child support maintenance,

apply equally (with any necessary modifications) to penalty payments payable by virtue of regulations under this section.
      (6) The Secretary of State shall pay penalty payments received by him into the Consolidated Fund."
 
Reduced benefit decisions.     19. For section 46 of the 1991 Act (failure to comply with obligations imposed by section 6) there shall be substituted-
 
 
"Reduced benefit decisions.     46. - (1) This section applies where any person ("the parent")-
 
    (a) has made a request under section 6(5);
 
    (b) fails to comply with any regulation made under section 6(7); or
 
    (c) having been treated as having applied for a maintenance calculation under section 6, refuses to take a scientific test (within the meaning of section 27A).
      (2) The Secretary of State may serve written notice on the parent requiring her, before the end of a specified period-
 
 
    (a) in a subsection (1)(a) case, to give him her reasons for making the request;
 
    (b) in a subsection (1)(b) case, to give him her reasons for failing to do so; or
 
    (c) in a subsection (1)(c) case, to give him her reasons for her refusal.
      (3) When the specified period has expired, the Secretary of State shall consider whether, having regard to any reasons given by the parent, there are reasonable grounds for believing that-
 
 
    (a) in a subsection (1)(a) case, if the Secretary of State were to do what is mentioned in section 6(3);
 
    (b) in a subsection (1)(b) case, if she were to be required to comply; or
 
    (c) in a subsection (1)(c) case, if she took the scientific test,

there would be a risk of her, or of any children living with her, suffering harm or undue distress as a result of his taking such action, or her complying or taking the test.
      (4) If the Secretary of State considers that there are such reasonable grounds, he shall-
 
 
    (a) take no further action under this section in relation to the request, the failure or the refusal in question; and
 
    (b) notify the parent, in writing, accordingly.
      (5) If the Secretary of State considers that there are no such reasonable grounds, he may, except in prescribed circumstances, make a reduced benefit decision with respect to the parent.
 
      (6) In a subsection (1)(a) case, the Secretary of State may from time to time serve written notice on the parent requiring her, before the end of a specified period-
 
 
    (a) to state whether her request under section 6(5) still stands; and
 
    (b) if so, to give him her reasons for maintaining her request,

and subsections (3) to (5) have effect in relation to such a notice and any response to it as they have effect in relation to a notice under subsection (2)(a) and any response to it.
      (7) Where the Secretary of State makes a reduced benefit decision he must send a copy of it to the parent.
 
      (8) A reduced benefit decision is to take effect on such date as may be specified in the decision.
 
      (9) Reasons given in response to a notice under subsection (2) or (6) need not be given in writing unless the Secretary of State directs in any case that they must.
 
      (10) In this section-
 
 
    (a) "comply" means to comply with the requirement or with the regulation in question; and "complied" and "complying" are to be construed accordingly;
 
    (b) "reduced benefit decision" means a decision that the amount payable by way of any relevant benefit to, or in respect of, the parent concerned be reduced by such amount, and for such period, as may be prescribed;
 
    (c) "relevant benefit" means income support or an income-based jobseeker's allowance or any other benefit of a kind prescribed for the purposes of section 6; and
 
    (d) "specified", in relation to a notice served under this section, means specified in the notice; and the period to be specified is to be determined in accordance with regulations made by the Secretary of State."
 
Miscellaneous
Voluntary payments.     20. - (1) After section 28I of the 1991 Act there shall be inserted-
 
 

"Voluntary payments
Voluntary payments.     28J. - (1) This section applies where-
 
 
    (a) a person has applied for a maintenance calculation under section 4(1) or 7(1), or is treated as having applied for one by virtue of section 6;
 
    (b) the Secretary of State has neither made a decision under section 11 or 12 on the application, nor decided not to make a maintenance calculation; and
 
    (c) the non-resident parent makes a voluntary payment.
      (2) A "voluntary payment" is a payment-
 
 
    (a) on account of child support maintenance which the non-resident parent expects to become liable to pay following the determination of the application (whether or not the amount of the payment is based on any estimate of his potential liability which the Secretary of State has agreed to give); and
 
    (b) made before the maintenance calculation has been notified to the non-resident parent or (as the case may be) before the Secretary of State has notified the non-resident parent that he has decided not to make a maintenance calculation.
      (3) In such circumstances and to such extent as may be prescribed-
 
 
    (a) the voluntary payment may be set off against arrears of child support maintenance which accrued by virtue of the maintenance calculation taking effect on a date earlier than that on which it was notified to the non-resident parent;
 
    (b) the amount payable under a maintenance calculation may be adjusted to take account of the voluntary payment.
      (4) A voluntary payment shall be made to the Secretary of State unless he agrees, on such conditions as he may specify, that it may be made to the person with care, or to or through another person.
 
      (5) The Secretary of State may by regulations make provision as to voluntary payments, and the regulations may in particular-
 
 
    (a) prescribe what payments or descriptions of payment are, or are not, to count as "voluntary payments";
 
    (b) prescribe the extent to which and circumstances in which a payment, or a payment of a prescribed description, counts."
      (2) Section 41B of the 1991 Act (repayment of overpaid child support maintenance) shall be amended as follows.
 
      (3) After subsection (1) there shall be inserted-
 
 
    "(1A) This section also applies where the non-resident parent has made a voluntary payment and it appears to the Secretary of State-
 
 
    (a) that he is not liable to pay child support maintenance; or
 
    (b) that he is liable, but some or all of the payment amounts to an overpayment,

and, in a case falling within paragraph (b), it also appears to him that subsection (1)(a) or (b) applies."
      (4) For subsection (7) there shall be substituted-
 
    "(7) For the purposes of this section-
 
 
    (a) a payment made by a person under a maintenance calculation which was not validly made; and
 
    (b) a voluntary payment made in the circumstances set out in subsection (1A)(a),

shall be treated as an overpayment of child support maintenance made by a non-resident parent."
 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2000
Prepared 6 April 2000