Child Support, Pensions and Social Security Bill - continued        House of Lords
PART I, CHILD SUPPORT - continued
Maintenance calculations and interim and default maintenance decisions - continued

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Applications by those claiming or receiving benefit.     6. - (1) This section applies where income support, an income-based jobseeker's allowance or any other benefit of a prescribed kind is claimed by or in respect of, or paid to or in respect of, the parent of a qualifying child who is also a person with care of the child.
 
      (2) In this section, that person is referred to as "the parent".
 
      (3) The Secretary of State may-
 
 
    (a) treat the parent as having applied for a maintenance calculation with respect to the qualifying child and all other children of the non-resident parent in relation to whom the parent is also a person with care; and
 
    (b) take action under this Act to recover from the non-resident parent, on the parent's behalf, the child support maintenance so determined.
      (4) Before doing what is mentioned in subsection (3), the Secretary of State must notify the parent in writing of the effect of subsections (3) and (5) and section 46.
 
      (5) The Secretary of State may not act under subsection (3) if the parent asks him not to (a request which need not be in writing).
 
      (6) Subsection (1) has effect regardless of whether any of the benefits mentioned there is payable with respect to any qualifying child.
 
      (7) Unless she has made a request under subsection (5), the parent shall, so far as she reasonably can, comply with such regulations as may be made by the Secretary of State with a view to the Secretary of State's being provided with the information which is required to enable-
 
 
    (a) the non-resident parent to be identified or traced;
 
    (b) the amount of child support maintenance payable by him to be calculated; and
 
    (c) that amount to be recovered from him.
      (8) The obligation to provide information which is imposed by subsection (7)-
 
 
    (a) does not apply in such circumstances as may be prescribed; and
 
    (b) may, in such circumstances as may be prescribed, be waived by the Secretary of State.
      (9) If the parent ceases to fall within subsection (1), she may ask the Secretary of State to cease acting under this section, but until then he may continue to do so.
 
      (10) The Secretary of State must comply with any request under subsection (9) (but subject to any regulations made under subsection (11)).
 
      (11) The Secretary of State may by regulations make such incidental or transitional provision as he thinks appropriate with respect to cases in which he is asked under subsection (9) to cease to act under this section.
 
      (12) The fact that a maintenance calculation is in force with respect to a person with care does not prevent the making of a new maintenance calculation with respect to her as a result of the Secretary of State's acting under subsection (3).
 
Default and interim maintenance decisions.     4. For section 12 of the 1991 Act (interim maintenance assessments) there shall be substituted-
 
Default and interim maintenance decisions.     12. - (1) Where the Secretary of State-
 
 
    (a) is required to make a maintenance calculation; or
 
    (b) is proposing to make a decision under section 16 or 17,
       and it appears to him that he does not have sufficient information to enable him to do so, he may make a default maintenance decision.
 
      (2) Where an application for a variation has been made under section 28A(1) in connection with an application for a maintenance calculation (or in connection with such an application which is treated as having been made), the Secretary of State may make an interim maintenance decision.
 
      (3) The amount of child support maintenance fixed by an interim maintenance decision shall be determined in accordance with Part I of Schedule 1.
 
      (4) The Secretary of State may by regulations make provision as to default and interim maintenance decisions.
 
      (5) The regulations may, in particular, make provision as to-
 
 
    (a) the procedure to be followed in making a default or an interim maintenance decision; and
 
    (b) a default rate of child support maintenance to apply where a default maintenance decision is made.
 
Applications for a variation
Departure from usual rules for calculating maintenance.     5. - (1) The 1991 Act shall be amended as follows.
 
      (2) For sections 28A to 28C (which deal respectively with applications for departure directions, their preliminary consideration, and the imposition of a regular payments condition) there shall be substituted-
 
 
Variations
Application for variation of usual rules for calculating maintenance.     28A. - (1) Where an application for a maintenance calculation is made under section 4 or 7, or treated as made under section 6, the person with care or the non-resident parent or (in the case of an application under section 7) either of them or the child concerned may apply to the Secretary of State for the rules by which the calculation is made to be varied in accordance with this Act.
 
      (2) Such an application is referred to in this Act as an "application for a variation".
 
      (3) An application for a variation may be made at any time before the Secretary of State has reached a decision (under section 11 or 12(1)) on the application for a maintenance calculation (or the application treated as having been made under section 6).
 
      (4) A person who applies for a variation-
 
 
    (a) need not make the application in writing unless the Secretary of State directs in any case that he must; and
 
    (b) must say upon what grounds the application is made.
      (5) In other respects an application for a variation is to be made in such manner as may be prescribed.
 
      (6) Schedule 4A has effect in relation to applications for a variation.
 
Preliminary consideration of applications.     28B. - (1) Where an application for a variation has been duly made to the Secretary of State, he may give it a preliminary consideration.
 
      (2) Where he does so he may, on completing the preliminary consideration, reject the application (and proceed to make his decision on the application for a maintenance calculation without any variation) if it appears to him-
 
 
    (a) that there are no grounds on which he could agree to a variation;
 
    (b) that he has insufficient information to make a decision on the application for the maintenance calculation under section 11 (apart from any information needed in relation to the application for a variation), and therefore that his decision would be made under section 12(1); or
 
    (c) that other prescribed circumstances apply.
Imposition of regular payments condition.     28C. - (1) Where-
 
 
    (a) an application for a variation is made by the non-resident parent; and
 
    (b) the Secretary of State makes an interim maintenance decision,
       the Secretary of State may also, if he has completed his preliminary consideration (under section 28B) of the application for a variation and has not rejected it under that section, impose on the non-resident parent one of the conditions mentioned in subsection (2) (a "regular payments condition").
 
      (2) The conditions are that-
 
 
    (a) the non-resident parent must make the payments of child support maintenance specified in the interim maintenance decision;
 
    (b) the non-resident parent must make such lesser payments of child support maintenance as may be determined in accordance with regulations made by the Secretary of State.
      (3) Where the Secretary of State imposes a regular payments condition, he shall give written notice of the imposition of the condition and of the effect of failure to comply with it to-
 
 
    (a) the non-resident parent;
 
    (b) all the persons with care concerned; and
 
    (c) if the application for the maintenance calculation was made under section 7, the child who made the application.
      (4) A regular payments condition shall cease to have effect-
 
 
    (a) when the Secretary of State has made a decision on the application for a maintenance calculation under section 11 (whether he agrees to a variation or not);
 
    (b) on the withdrawal of the application for a variation.
      (5) Where a non-resident parent has failed to comply with a regular payments condition, the Secretary of State may in prescribed circumstances refuse to consider the application for a variation, and instead reach his decision under section 11 as if no such application had been made.
 
      (6) The question whether a non-resident parent has failed to comply with a regular payments condition is to be determined by the Secretary of State.
 
      (7) Where the Secretary of State determines that a non-resident parent has failed to comply with a regular payments condition he shall give written notice of his determination to-
 
 
    (a) that parent;
 
    (b) all the persons with care concerned; and
 
    (c) if the application for the maintenance calculation was made under section 7, the child who made the application.
      (3) In section 28D (determination of applications)-
 
 
    (a) for subsection (1) there shall be substituted-
      (1) Where an application for a variation has not failed, the Secretary of State shall, in accordance with the relevant provisions of, or made under, this Act-
 
 
    (a) either agree or not to a variation, and make a decision under section 11 or 12(1); or
 
    (b) refer the application to an appeal tribunal for the tribunal to determine what variation, if any, is to be made.;
 
    (b) in each of subsections (2) and (3), for "an application for a departure direction" there shall be substituted "an application for a variation"; and
 
    (c) in subsection (2), in paragraph (a) "lapsed or" shall be omitted, at the end of paragraph (b) "or" shall be inserted, and after that paragraph there shall be inserted-
 
    (c) the Secretary of State has refused to consider it under section 28C(5).
      (4) In section 28E (matters to be taken into account)-
 
 
    (a) in subsections (1), (3) and (4), for "any application for a departure direction" (wherever appearing) there shall be substituted "whether to agree to a variation"; and
 
    (b) in subsection (4)(a), for "a departure direction were made" there shall be substituted "the Secretary of State agreed to a variation".
      (5) For section 28F (departure directions) there shall be substituted-
 
Agreement to a variation.     28F. - (1) The Secretary of State may agree to a variation if-
 
 
    (a) he is satisfied that the case is one which falls within one or more of the cases set out in Part I of Schedule 4B or in regulations made under that Part; and
 
    (b) it is his opinion that, in all the circumstances of the case, it would be just and equitable to agree to a variation.
      (2) In considering whether it would be just and equitable in any case to agree to a variation, the Secretary of State-
 
 
    (a) must have regard, in particular, to the welfare of any child likely to be affected if he did agree to a variation; and
 
    (b) must, or as the case may be must not, take any prescribed factors into account, or must take them into account (or not) in prescribed circumstances.
      (3) The Secretary of State shall not agree to a variation (and shall proceed to make his decision on the application for a maintenance calculation without any variation) if he is satisfied that-
 
 
    (a) he has insufficient information to make a decision on the application for the maintenance calculation under section 11, and therefore that his decision would be made under section 12(1); or
 
    (b) other prescribed circumstances apply.
      (4) Where the Secretary of State agrees to a variation, he shall-
 
 
    (a) determine the basis on which the amount of child support maintenance is to be calculated in response to the application for a maintenance calculation (including an application treated as having been made); and
 
    (b) make a decision under section 11 on that basis.
      (5) If the Secretary of State has made an interim maintenance decision, it is to be treated as having been replaced by his decision under section 11, and except in prescribed circumstances any appeal connected with it (under section 20) shall lapse.
 
      (6) In determining whether or not to agree to a variation, the Secretary of State shall comply with regulations made under Part II of Schedule 4B.
 
Applications for a variation: further provisions.     6. - (1) For Schedule 4A to the 1991 Act there shall be substituted the Schedule 4A set out in Part I of Schedule 2.
 
      (2) For Schedule 4B to that Act there shall be substituted the Schedule 4B set out in Part II of Schedule 2.
 
Variations: revision and supersession.     7. For section 28G of the 1991 Act there shall be substituted-
 
Variations: revision and supersession.     28G. - (1) An application for a variation may also be made when a maintenance calculation is in force.
 
      (2) The Secretary of State may by regulations provide for-
 
 
    (a) sections 16, 17 and 20; and
 
    (b) sections 28A to 28F and Schedules 4A and 4B,
       to apply with prescribed modifications in relation to such applications.
 
      (3) The Secretary of State may by regulations provide that, in prescribed cases (or except in prescribed cases), a decision under section 17 made otherwise than pursuant to an application for a variation may be made on the basis of a variation agreed to for the purposes of an earlier decision without a new application for a variation having to be made.
 
 
Revision and supersession of decisions
Revision of decisions.     8. - (1) Section 16 of the 1991 Act (revision of decisions) shall be amended as follows.
 
      (2) In subsection (1), for "of the Secretary of State under section 11, 12 or 17" there shall be substituted "to which subsection (1A) applies".
 
      (3) After subsection (1), there shall be inserted-
 
      (1A) This subsection applies to-
 
 
    (a) a decision of the Secretary of State under section 11, 12 or 17;
 
    (b) a reduced benefit decision under section 46;
 
    (c) a decision of an appeal tribunal on a referral under section 28D(1)(b).
      (1B) Where the Secretary of State revises a decision under section 12(1)-
 
 
    (a) he may (if appropriate) do so as if he were revising a decision under section 11; and
 
    (b) if he does that, his decision as revised is to be treated as one under section 11 instead of section 12(1) (and, in particular, is to be so treated for the purposes of an appeal against it under section 20).
Decisions superseding earlier decisions.     9. - (1) Section 17 of the 1991 Act (decisions superseding earlier decisions) shall be amended as follows.
 
      (2) In subsection (1), for paragraph (c) there shall be substituted-
 
 
    (c) any reduced benefit decision under section 46;
 
    (d) any decision of an appeal tribunal on a referral under section 28D(1)(b);
 
    (e) any decision of a Child Support Commissioner on an appeal from such a decision as is mentioned in paragraph (b) or (d).
      (3) For subsection (4) there shall be substituted-
 
      (4) Subject to subsection (5) and section 28ZC, a decision under this section shall take effect as from the beginning of the maintenance period in which it is made or, where applicable, the beginning of the maintenance period in which the application was made.
 
      (4A) In subsection (4), a "maintenance period" is (except where a different meaning is prescribed for prescribed cases) a period of seven days, the first one beginning on the effective date of the first decision made by the Secretary of State under section 11 or (if earlier) his first default or interim maintenance decision (under section 12) in relation to the non-resident parent in question, and each subsequent one beginning on the day after the last day of the previous one.
 
 
Appeals
Appeals to appeal tribunals.     10. For section 20 of the 1991 Act (appeals to appeal tribunals) there shall be substituted-
 
Appeals to appeal tribunals.     20. - (1) A qualifying person has a right of appeal to an appeal tribunal against-
 
 
    (a) a decision of the Secretary of State under section 11, 12 or 17 (whether as originally made or as revised under section 16);
 
    (b) a decision of the Secretary of State not to make a maintenance calculation under section 11 or not to supersede a decision under section 17;
 
    (c) a reduced benefit decision under section 46;
 
    (d) the imposition (by virtue of section 41A) of a requirement to make penalty payments, or their amount;
 
    (e) the imposition (by virtue of section 47) of a requirement to pay fees.
      (2) In subsection (1), "qualifying person" means-
 
 
    (a) in relation to paragraphs (a) and (b)-
 
      (i) the person with care, or non-resident parent, with respect to whom the Secretary of State made the decision, or
 
      (ii) in a case relating to a maintenance calculation which was applied for under section 7, either of those persons or the child concerned;
 
    (b) in relation to paragraph (c), the person in respect of whom the benefits are payable;
 
    (c) in relation to paragraph (d), the parent who has been required to make penalty payments; and
 
    (d) in relation to paragraph (e), the person required to pay fees.
      (3) A person with a right of appeal under this section shall be given such notice as may be prescribed of-
 
 
    (a) that right; and
 
    (b) the relevant decision, or the imposition of the requirement.
      (4) Regulations may make-
 
 
    (a) provision as to the manner in which, and the time within which, appeals are to be brought; and
 
    (b) such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.
      (5) The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.
 
      (6) No appeal lies by virtue of subsection (1)(c) unless the amount of the person's benefit is reduced in accordance with the reduced benefit decision; and the time within which such an appeal may be brought runs from the date of notification of the reduction.
 
      (7) In deciding an appeal under this section, an appeal tribunal-
 
 
    (a) need not consider any issue that is not raised by the appeal; and
 
    (b) shall not take into account any circumstances not obtaining at the time when the Secretary of State made the decision or imposed the requirement.
      (8) If an appeal under this section is allowed, the appeal tribunal may-
 
 
    (a) itself make such decision as it considers appropriate; or
 
    (b) remit the case to the Secretary of State, together with such directions (if any) as it considers appropriate.
Redetermination of appeals.     11. After section 23 of the 1991 Act there shall be inserted-
 
Redetermination of appeals.     23A. - (1) This section applies where an application is made to a person under section 24(6)(a) for leave to appeal from a decision of an appeal tribunal.
 
      (2) If the person who constituted, or was the chairman of, the appeal tribunal considers that the decision was erroneous in law, he may set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal.
 
      (3) If each of the principal parties to the case expresses the view that the decision was erroneous in point of law, the person shall set aside the decision and refer the case for determination by a differently constituted tribunal.
 
      (4) The "principal parties" are-
 
 
    (a) the Secretary of State; and
 
    (b) those who are qualifying persons for the purposes of section 20(2) in relation to the decision in question.
 
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