Many parents assume a Child Maintenance Service (CMS) calculation is final. However, if a decision is incorrect or circumstances change, there are several ways to challenge it. Both the person with care (PWC) and the non-resident parent (NRP) can challenge a maintenance calculation or other CMS decision.
Variation
A variation allows the CMS to adjust a maintenance calculation where the standard assessment does not reflect the non-resident parent’s true financial position. Common grounds include:
Special expenses paid by the NRP. These may include:
- Certain contact costs
- Costs arising from a child’s long-term illness or disability
- Repayment of qualifying family debts
- Boarding school maintenance fees
- Certain mortgage, loan or insurance payments relating to the former family home but only if the NRP retains no legal or equitable interest in the property.
Unearned income not included in the calculation such as:
- Rental income
- Dividend income
- Savings and investment income
Generally, the income must exceed £2,500 per year.
- Notional income from significant assets (valued above £31,250)
- Cases where a nil-rate or flat-rate assessment has been applied despite the NRP earning more than £100 per week
- Diversion of income by the NRP i.e. is the NRP diverting income or retaining it within a business to deliberately reduce child maintenance.
Any variation must be considered “just and equitable” and focused on the child’s welfare.
Revision
A revision (mandatory reconsideration) is used to correct mistakes in a CMS decision, such as:
- Miscalculations
- Official errors
- Incorrect financial information
- Updated HMRC income information
Requests should normally be made within 30 days of the original decision.
Supersession
A supersession allows the CMS to replace an existing decision when relevant circumstances have changed, for example:
- A change in income
- A change in care arrangements
- Loss of CMS jurisdiction
- Death of one of the parents
- Discovery of a material factual mistake
Appeal
If you disagree with a CMS decision following mandatory reconsideration, you may appeal to the First-tier Tribunal. Appealable decisions include:
- maintenance calculations
- default or interim calculations
- decisions not to make or alter a calculation
- penalty payments and fees.
Appeals are generally required within one month of the decision. Extensions may be available in certain circumstances, potentially up to one year after the deadline but the appellant must provide written reasons for the delay.
If a party believes the First-tier Tribunal has made an error of law, a further appeal may be possible to the Upper Tribunal.
Summary
A CMS assessment is not always the final word. Parents who believe a child maintenance decision is incorrect or unfair may have several options available depending on the circumstances.
Given the complexity of the rules and the strict procedural requirements, obtaining early legal advice can be crucial in identifying the most effective route for challenging a CMS decision and securing an outcome that properly reflects the child’s financial needs. If you would like to speak to a member of our team regarding child maintenance issues contact us here.
