The Child Maintenance Service (the “CMS”) calculates child maintenance in accordance with a formula and set criteria. Most of the time, they get it right. However, there may be instances when the CMS may have made an error or missed evidence when making their decision on a child maintenance calculation.
If you receive a decision from the CMS which you do not agree with, you can ask them to review their decision. This process is known as seeking a “mandatory reconsideration”.
How to ask for a mandatory reconsideration
You need to request a mandatory reconsideration within one month of the date you receive the “original CMS decision letter”. So acting quickly is really important.
The first steps would therefore be to:
- Check your original decision letter to see if the decision can be reconsidered or whether you have to go straight to an appeal at the Social Security and Child Support Tribunal (more on this process below); and
- Check your original decision letter to see if you are within the one month deadline.
If you miss the one month deadline, you can still apply for a mandatory reconsideration but you need to provide a “good reason” for why you failed to meet the deadline. A good reason could include suffering from a serious illness or bereavement. It is up to the CMS to then decide whether it proceeds with your request or refuses it.
Even if the CMS refuses your application because you failed to meet the deadline, you can appeal to a tribunal so long as you apply within 13 months of the date on your original decision letter. Again, the reason for delay will be important.
Assuming you were on time, as part of your request for a mandatory reconsideration, you will need to set out very clearly why you consider the decision that has been reached to be wrong, with a supporting statement and documentary evidence (such as new medical evidence, bank statements, pay slips, and tax returns) proving your position.
The CMS’s decision
Once you have requested a mandatory reconsideration, the CMS will reconsider their decision and give you a letter called a “mandatory reconsideration notice”. This notice will set out:
- whether or not they have changed their original decision;
- the reasons for their decision; and
- the evidence they have based their decision on.
If the CMS changes their decision, they’ll change the amount you need to pay and backdate it to the date of their original decision.
Appealing the CMS’s decision
If, you still believe the outcome of your mandatory reconsideration request is wrong, you can appeal to the Social Security and Child Support Tribunal, which is an independent body.
Again, timing is key. You must submit your appeal within one month of the date of your mandatory reconsideration notice. If you miss that deadline, you might be able to ask for a “late appeal” but you must give reasons for why your late appeal should be allowed and it is not guaranteed.
After you submit your appeal, you can manage your appeal online and provide evidence.
You will be given a date to attend a tribunal hearing, where a judge will listen to both sides of the argument before making a decision in the form of a “decision notice”.
If you think the Social Security and Child Support Tribunal made the wrong decision, you can make an application for permission to appeal to the Upper Tribunal. This application must be made within one month of the date on which the Social Security and Child Support Tribunal sends you the decision notice. It is very important to remember that the only ground you can appeal the Social Security and Child Support Tribunal’s decision is if they have made an ‘error on a point of law’. Before proceeding it would be highly advisable for you to get advice from a solicitor.
Health Warning
You must remember that while the CMS decision is being reconsidered or appealed, it will stay in force. You must continue to make payment of the child maintenance in accordance with the calculation on the original decision letter until the issue is sorted out. If you do not pay, the CMS may force the collection of what they think you owe. If they do so they will automatically charge an additional 20% on top if what they think you owe. So it can be very costly.
If you are successful on your appeal – the overpayment made by you will be taken into account.
The process for challenging a CMS calculation can be difficult, particularly with the time limits and putting together the evidence to support your case. If you are considering challenging the CMS’s decision, early legal advice should be obtained and our expert family law solicitors can assist you. Contact our expert team to discuss your situation in confidence.
