Consultation outcome

Government response to 'Child maintenance: changes to powers of entry and information requests'

Updated 26 March 2019

Introduction

1. The Child Maintenance Service (CMS) was introduced in 2012. The reformed service is designed to be more cost-effective and overcome many of the problems associated with the Child Support Agency (CSA).

2. The reforms included a new IT system and based the calculation of child maintenance liability on information about the non-resident parent’s income from HM Revenue and Customs (HMRC). In this consultation response, non-resident parent refers to the parent who pays maintenance to the parent with whom the qualifying child lives for the majority of the time.

3. The CMS has a range of powers to obtain information necessary to calculate child maintenance liabilities accurately and, where necessary, enforce. This consultation sought views on changes to 2 aspects of these powers: qualifying a CMS inspector’s ability to enter private property; and widening of the current list of organisations with a legal obligation to provide information following a request by the CMS.

4. Sections 3 to 6 of The Child Support Information Regulations 2008 place a duty upon individuals and organisations to provide information, if required by the Secretary of State for Work and Pensions (or the Department for Communities in Northern Ireland), to enable:

• the non-resident parent to be identified or traced (where necessary)
• the amount of child maintenance payable by the non-resident parent to be calculated
• an amount of child maintenance arrears to be recovered from the non-resident parent

5. Where information is not provided by individuals or organisations as required under those Regulations, section 15 of the Child Support Act 1991 (or, in Northern Ireland, Article 7 of the Child Support (Northern Ireland) Order 1991) allows for an inspector, appointed by the Secretary of State or the NI Department to obtain it by inspecting certain premises where this information may be held.

6. Our proposed changes aim to simplify the gathering of information and evidence, by reducing the need for visits to premises where information is held, whilst providing safeguards for the public where it is necessary for an inspector to visit premises to obtain information

7. This consultation response sets out how we intend to achieve this, having given due consideration to the responses to the public consultation on our proposals in relation to power of entry provisions, and changes to include mortgage lenders and occupational pension providers into the list of organisations that are required to provide us with information on request.

Executive summary

8. On 14 January 2019 the government published ‘Child Maintenance: Powers of Entry and Information consultation’. This public consultation put forward proposals intended to further improve the collection of information and provide safeguards to the public.

9. When the consultation was published on 14 January 2019 we wrote to a range of stakeholders who we anticipated would be interested in these changes inviting them to respond to the consultation. The consultation closed on 11 February 2019. Twenty-two responses were received: 2 from organisations and 20 from private individuals, of which 13 identified themselves as non-resident parents and one as a receiving parent. A full list of organisations who responded can be found at Annex A.

10. The consultation invited responses to 5 questions about our proposals to have an additional safeguard to the powers of entry to premises in section 15 of the Child Support Act 1991 and to expand the list of those required to comply with requests for information, under the Child Support Information Regulations 2008 to include pension providers and mortgage lenders.

11. Not all respondents chose to answer the specific questions asked, and some preferred to provide their views on the proposals in general. Where possible we have tried to reflect these responses in the appropriate sections. The majority of responses received from parents were about individual case circumstances, and therefore outside the scope of the consultation.

12. This publication summarises the main points made by respondents and provides the government’s full response to them. It also sets out how we will take these proposals forward in order to achieve the objectives of our new Child Maintenance Compliance and Arrears Strategy.

13. Overall, respondents were in favour of the changes. Some respondents did raise concerns that inspectors should not be applying for judicial warrants. We think it will add a necessary safeguard to the current power of entry provisions, protecting people from the potential of unnecessary inspection. The additional safeguard will also ensure that the department is fully compliant with the Protection of Freedoms Act 2012.

14. One respondent was also concerned that the process of applying for a judicial warrant would be a “rubber stamping exercise”. We have put a number of measures in place to ensure the process is balanced and fair. All applications for judicial warrants will be considered either in the magistrates’ court (in England and Wales), or sheriff court (in Scotland).

15. Some respondents were also keen that the issue of a judicial warrant could be appealed. The existing rights of appeal in connection with decisions made by a magistrates’ court or sheriff or summary sheriff will continue to apply in relation to a decision to issue or not issue a warrant (see, for example, section 111A of the Magistrates’ Court Act 1980). We are not proposing to create any additional specific right of appeal in connection with the new powers to issue warrants.

16. Finally, some respondents did not agree with our proposal to include mortgage lenders and occupational pension providers in the list of organisations that are required to provide us information, because they thought the information provided by HMRC is already sufficient. We do, however, require information from these organisations in specific circumstances, for example when identifying a variation to the calculation of income. We feel this is a necessary change that will benefit the organisations in question by making the process much simpler for them, and reducing the need for our inspectors to visit them.

Responses

Powers of entry changes

We asked

17. Do you agree there are sufficient warnings within the proposed process to advise the occupier that a judicial warrant will be sought if access to the premises is refused without good reason? If not, please give your reasons.

You said

18. There was some agreement that there were sufficient warnings within the proposed process whilst others stated that a warrant should not be necessary at all as they felt there should be no reason to access a premises.

What we are doing

19. Where the CMS require information for the purpose of calculating child maintenance, it may be necessary for an inspector to visit a premises to try and obtain this information.

20. The premises which can be inspected are those which are not used wholly as a dwelling house and which the inspector has reasonable grounds for suspecting are:

• premises at which a non-resident parent is or has been employed
• premises at which a non-resident parent carries out or has carried out a trade, profession, vocation or business
• premises at which there is information held by a person (‘A’) whom the inspector has reasonable grounds for suspecting has information about a non-resident parent acquired in the course of A’s own trade, profession, vocation or business

21. Where an inspector intends to carry out a visit they will:

• send a letter of intent to visit the premises – the letter will include a warning that a judicial warrant may be applied for if access to the premises is refused and it will also warn that prosecution may be considered
• the letter will state a time for the inspector’s visit which is considered to be convenient within the business hours of that particular premises

22. An application for a judicial warrant will only be made in the rare instances where our inspectors either have been refused access or have reason to suspect they would be refused access to the premises. Where this is the case the inspector will advise the occupier of their duty to provide the information required. They will also advise them that continued refusal of entry could result in an application to the court for a judicial warrant.

We asked

23. Do you agree that inspectors can seek a warrant if access to the premises is initially, or where the inspector considers it likely to be, refused? If not, please give your reasons.

You said

24. The responses we received mainly stated there was no reason for inspectors to enter premises or were concerned that a judicial warrant would lead to forced entry to premises.

25. A concern was raised that the judicial warrant proposal would be a “rubber stamping” exercise, making it too easy to enter premises.

What we are doing

26. Our aim in extending the list of organisations in the Information Regulations is to simplify the gathering of information and evidence process, by reducing the need for visits to premises where information is held.

27. Where it is necessary for an inspector to visit premises to obtain information, the judicial warrant provides an additional safeguard for the public. Under the current process where an inspector is refused entry to premises, we have grounds to prosecute the occupier immediately after their refusal.

28. Adding a judicial warrant into the power of entry process will allow occupiers to make representations at the warrant hearing regarding why an inspector should not be given access to their premises. The court will then make an independent decision as to whether access is appropriate.

How will you get a judicial warrant for premises in England and Wales?

29. We propose the inspector will make a judicial warrant application to the magistrates’ court in England and Wales.

30. If the application for a judicial warrant is granted the occupier of the premises will be given a period of at least 21 days to make representations. If representations are made a date will be arranged for a face-to-face hearing in the magistrates’ court. If representations are not made within a period of 21 days, the hearing will be heard by a magistrate over the telephone. The magistrate will consider all the available evidence and make a decision whether to award the warrant.

How will you get a judicial warrant for premises in Scotland?

31. In Scotland an application for a judicial warrant will be made by summary application and will be considered by either a sheriff or summary sheriff.

32. If the court accepts the application, a warrant of citation/intimation will be signed which will specify a date, time and location for the hearing of the application. The occupier will be given a period of 21 days’ notice of the hearing. The occupier may attend the hearing if they so wish or be legally represented.

What will happen if the judicial warrant is granted

33. If the warrant is granted, further contact will be made with the occupier to confirm that:

• a warrant permitting access to their premises has been made
• arrange for a visit to be made as soon as possible

34. The warrant will permit access to one set of premises for inspection only. Separate warrants will be required if the information may be held in multiple properties.

We asked

35. Do you agree that a one-month lifespan, from the day it is granted, of the judicial warrant is a reasonable period of time? If not, please give your reasons.

You said

36. There was some agreement that a one-month lifespan was reasonable. Others felt 5 days should be the maximum period.

What we are doing

37. It is our intention to provide that there be a one-month lifespan for the judicial warrant as this will allow sufficient time to make contact with the occupier of premises to arrange a visit at a time that is convenient with them.

38. We also propose that the inspector can apply for a further judicial warrant if they are unable to use the warrant in the one-month time period.

We asked

39. Do you agree appeal rights are not required?

You said

40. Respondents were in favour of having appeal rights and some respondents felt that these rights should always be available no matter what the situation.

What are we doing

41. We have considered this very carefully and have been in discussion with both HM Courts and Tribunals Service and the Scottish Courts and Tribunals Service to consider the addition of new appeal rights.

42. There are general rights of appeal that arise in relation to decisions made by a magistrates’ court or sheriff court. See, for example, section 111A of the Magistrates’ Courts Act 1980 and section 110 of the Courts Reform (Scotland) Act 2014. These rights of appeal will apply equally to a decision to issue or not issue a warrant under the new provisions. It is our view that these existing appeal rights are sufficient.

43. Therefore, we intend to proceed without the addition of further appeal rights in these cases.

Information changes

We asked

44. Do you have any comments in relation to the inclusion of mortgage lenders and pension providers to the list of persons and organisations who have a duty to provide information to the Secretary of State?

You said

45. Some respondents queried why we would ask mortgage lenders and pension providers for information, stating that beyond information provided by HMRC that we should not seek further financial information.

What we are doing

46. We intend to proceed with the addition of mortgage lenders and occupational pension providers to the list of those from whom the department requires to provide information relevant for the calculation of child maintenance.

By including mortgage lenders and occupational pension providers, it makes the process for them to supply requested information to the CMS far simpler. Previously, an inspector would have had to visit their premises. Now they will be able to respond to information requests by secure electronic means. This is far more convenient and less intrusive for these organisations.

47. An example of when we may request information from these organisations is to:

• establish if a parent with child maintenance arrears owns any property – if we establish they do own property, we may consider putting a charging order on the property
• establish if a parent has an occupational pension that we may be able to make a deduction of earnings order from to help collect outstanding child maintenance arrears

Next steps

48. We are planning to make changes to the 2008 Information Regulations and to the Child Support Act 1991 (the latter through powers in the Protection of Freedoms Act 2012 which allow for the amendment of primary legislation).

49. It is intended that Northern Ireland will take forward corresponding amendments to the Information Regulations. The powers of entry changes will not, however, apply in Northern Ireland as the provisions in the Protection of Freedoms Act 2012 only extend to Northern Ireland insofar as they relate to excepted or reserved matters. As child maintenance is a devolved matter, the powers in this Act cannot be used to make changes to child maintenance legislation for Northern Ireland.

Annex A – Organisations who responded to the consultation

Parenting Northern Ireland
Scottish Courts and Tribunals Service