Do you feel the assessment is wrong?
As discussed earlier the method of calculating child support with a system in force on cases commenced prior to 2003 (old style) is very complicated with plenty of room for error. We have seen virtually every possible error with the CSA allowing for non-existent housing costs, non-existent pensions, incorrectly calculating Tax, NI, child living with the father, even stating the father is in receipt of benefits when he is not. There are therefore plenty of areas where the CSA can make mistakes. If you think an error has been you can appeal to a Tribunal but you should be aware that time limits are very strict, any appeal must be issued within one month. The time limit is absolute and is extended only on very rare occasions. You will note that just because you think the assessment is too low that is not in itself a reason to appeal however you may well feel that the income is too low or perhaps that his housing costs are too high. Perhaps the CSA have allowed for children allowances within the calculation and you do not think he has a child living with him. You can simply appeal a decision by stating that you believe that the net and exempt income is incorrect.
Once an appeal is with The Appeals Service the CSA files a submission, they check all of the details that you raise in your appeal and then do a submission to the Tribunal. In many ways a wide ranging appeal stating that you believe that the CSA calculated net and exempt income incorrect is the best way of proceeding since the CSA will in their submission to the Tribunal state exactly how they have calculated these parts of the assessments and these are crucial in determining how much should be paid. Once a submission is filed by the CSA you are then asked by the Tribunal if you still wish to proceed. Please note that most of the appeals that we successful conduct are contested by the Agency who maintain their assessment is correct. Just because the CSA say that in their submissions that your assessment is correct does not mean that your appeal stands no chance of success, you must look at all of the paperwork and think to yourself whether or not the law stacks up. If you need advice please call 08456 588683.
Appeals under the new system follow exactly the same procedure as above but no allowance is given for housing costs this is one less mistake for the CSA to make. In reality there are still plenty of others for them to make and in our experience the CSA frequently do so.
It may well be that although the assessment or calculation is legally correct you feel that the amount payable is still too small. In these circumstances an appeal to the Tribunal may not be the best bet, departure (old system) or variation (new system) may be more appropriate.
Old style CSA - Application for departure
Under the old style CSA either parent can make an application to the CSA for what is called a “departure” if they feel that the maintenance calculation is either too high or too low. There are many different grounds for departures although as a parent with care the ones you need to look at are as follows:-
1. High travel costs to be disregarded. The CSA can award travel costs in some cases. If you believe your ex has been awarded too much by way of travel costs you can apply for a departure to reduce these.
2. Assets that could produce an income. If you believe your ex has assets in excess of £10,000.00 and that they are producing insufficient income or no income whatsoever you can apply for a departure on this ground. If successful this will add to the non-resident parents net income.
3. Diversion of income. If you believe that your ex has the ability to control his income, maybe he is a director of a limited company or self-employed and you believe that income is being diverted to another person, for instance his partner, brother, sister, etc then you can apply for a departure on this ground. If accepted the income diverted is then added to the non-resident parents declared income on the basic assessment.
4. Lifestyle inconsistent with declared income. Where you believe that non-resident parents lifestyle is significantly inconsistent with his income you can apply for a departure on this point. Frequent pointers would be those non-resident parents with very low assessments living in extremely big houses with huge mortgages, expensive cars, repeated holidays abroad, sending their new children to private school, etc etc. If successful the amount necessary to maintain that standard of living is added onto the non-resident parents income.
5. Unreasonably high housing costs. Where a non-resident parents housing costs exceed half of his net income a departure decision can be made to restrict the housing costs to 50% of his net income. This in turn reduces his exempt income and can therefore increase the amount payable.
6. Partners contribution housing costs. Where you believe the non-resident parent is living with a partner and that partner is in receipt of an income you can ask the CSA to make a departure transferring part of the housing costs onto that partner. This then reduces the housing costs payable by the non-resident parent therefore reducing the amount of exempt income and can therefore increase the amount of maintenance payable.
If you decide to make a departure application you will need to ask the CSA for the relevant form. Once you have completed and returned the form the CSA then send the form on with all the comments to the non-resident parent who has the opportunity to put forward his side of the story, this is called resolution phase.
If he does not respond then the CSA will consider the documentation purely on the basis of what you file, if he does respond then the CSA will consider the case and make a decision whether to depart or not. In reality the CSA very seldom grant departures themselves on the basis of assets, lifestyle or diversion but will frequently grant departures on the basis of unreasonably high travel costs, unreasonably high housing costs or partners contribution towards housing costs. This is because these are worked on a much more formula mathematical basis and the CSA are fairly comfortable with this. The CSA are less comfortable with attempting to estimate what an asset may or may not produce, whether somebody really has diverted income or their lifestyle is inconsistent with their income, the CSA tend to take the view that this is more of a judicial function and therefore the Agency on these kind of applications usually either refuse them or on the basis they feel there is simply a total lack of evidence or alternatively refer them to a Tribunal.
It is possible for the CSA to make a decision on some parts of your application and refuse the balance. Any departure decision made by the CSA can be appealed by either the parent with care or the non-resident parent to a tribunal. We have a very long record of successfully appealing CSA refusals to depart to Tribunals and obtaining a departure once the Tribunal has heard all the evidence.
It should be realised that even when a departure is granted it is still subject to the protected income and 30% Rule. It is therefore possible (it does occur in many cases) that the CSA make a departure direction only to find that it makes no difference to the amount of maintenance payable. If this happens such a departure decision is then refused on the basis that the giving of a departure direction will make no difference to the amount of maintenance payable.
If you want to make a departure application or if you have had a departure application refused or if you believe that the departure decision made is not sufficient then please call us on 08456 588683.
Non-resident parent departure applications
Obviously the non-resident parent is able to make an application for departure if they feel the child support assessment is too high. In particular they can make the following applications:-
1. Travel costs to work. This includes train fares, fuel, taxi fares and road or bridge tolls.
2. Contact costs. If there is a frequent and regular contact arrangement and no shared care award then the non-resident parent can ask for his costs of contact to be taken into account which includes the cost of rail or bus tickets, fuel, taxi or air fares together with any tolls.
3. Illness or disability. If your ex suffers with an illness or disability or has any children or a partner living with him who suffers with an illness or disability then he can apply for a departure on the basis of the costs associated with that.
4. Debts. Where your ex has ended up “lumbered” with debts that were incurred whilst the two of you were together and for the benefit for the two of you (or any of the children that were with the two of you at the time) an application can be made on this ground.
5. Pre-1993 Debts. These applications have never been common and as time goes by this ground has become virtually irrelevant. If you do find such a ground being made against you should telephone us on 08456 588683.
6. If your ex has children living with him who have lived with him since before April 1993 he can apply for a departure on the basis of the costs incurred in supporting those children. Once again for the purposes of new applications this is virtually irrelevant however if your ex has been successful in obtaining a departure on this ground it is still possible to change the situation and defend it, no matter how old it is.
If you receive any of these applications from the CSA made by the non-resident parent you really should obtain legal advice, not only on the basis of how to defend them but to see whether or not you can make your own cross application.
It may be the position that the non-resident parent has a winning case in relation to a departure ground himself which from your point of view is practically undefendable but you could easily regain the money lost by making your own cross application. It is even possible for the cross application to be worth more thereby resulting in an increase of child support.
It is very important that legal advice is taken on these points. Call us on 08456 588683.
Variations to new style CSA calculation (after 3rd March 2003)
Although the new system is a “one-size fits all” equation you may not be happy with the calculation produced. If so you can apply for a variation so that the figures are looked at differently. Variation can be applied for on many different grounds but as the parent with care you would be looking at:-
1. If your ex has assets worth in excess of £65,000.00 (after deducting any mortgage or loan relating to them) a variation can be applied for on this ground. If successful the variation will value the asset, apply an income figure for it and the non-resident parents net income will then be increased by that amount thus increasing the assessment.
2. Income not taken into account. Where your ex has income that you believe the CSA has not utilised an application on this ground will then add further income to income already used thereby increasing the amount of maintenance payable. This is particularly aimed at Company Directors who perfectly legally pay themselves a relatively small sum by way of salary and then pay a large dividend thereby saving on significant Tax and NI contributions. If your ex is a director you should obtain legal advice. Call us on 08456 588683.”
3. Diversion of income. If your ex has the ability to control his income because he is either self-employer or a company director and you feel that income is being diverted to other people, such as his current partner, his brother, sister, etc or for instance to provide himself with a flash car then you can apply for a variation on this ground. Again the effect is to determine the value being diverted every week and increase the income accordingly.
4. Lifestyle inconsistent with income. Where the CSA is satisfied that the income utilised in the calculation is substantially lower than the amount required to support his lifestyle a variation can be granted on this ground. The CSA then has to value the amount of the income necessary to maintain the lifestyle and add that to the non-resident parents net income thereby increasing the amount of maintenance payable.
In reality there have been very few variation applications so far but early indications would suggest that the CSA remains very reluctant on their own to make these variation awards. It is envisaged that in most cases the CSA would either refuse a variation in which case you can appeal to a Tribunal or alternatively send it up to Tribunal themselves to be determined. Again this seems to be because the CSA are nervous of exercising what they believe is a “quasi judicial” role.
If you have applied for a variation and been refused or if you have applied for a variation and believe the amount granted is not sufficient or alternatively if the CSA have referred the variation application to a Tribunal and just want some advice then give us a call on 08456 588683.