CS3 and Equal Shared Care Cases
The new Child Maintenance Service promised to support parents who were willing and able to make their own arrangements for child support, and parents and organisations such as NACSA welcomed the move. Legislation was written to ensure that where parents shared the care of the children on an absolutely equal basis, neither parent was entitled to claim maintenance from the other.
Previous legislation, that governs 1993 (CS1/Old Rules) and the 2003 (CS2/New Rules) scheme did not recognise cases where parents shared equally the responsibility of raising their children, and in such situations it was the person who receives the child benefit that was defined as the Person with Care and therefore entitled to claim maintenance from the other parent. This often led to multiple claims for child benefit, or applications for the child benefit to be divided between parents where there was more than one child involved. These applications were often made for no other reason than to have the CSA recognise both parents equally, and not for financial gain. And so parents applauded the changes that would now recognise equal shared care without the need to rely on child benefit receipt.
Or so we thought....
Parents who wish to make an application to CS3 must first speak with CM Options, who will inform you that in cases where the care of the child is divided equally no application can be made. Unfortunately we are receiving increased numbers of complaints where applications have been accepted despite the equal shared care status being evident and acknowledged by the Agency staff. Reasons for allowing the application range from "the mother has the child benefit therefore she can claim" to "your income is too high and so the mother can claim". Neither statement is correct.
Regulation 50 (2) Child Support Maintenance Calculation regulations 2012 states:
(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant. [our emphasis]
A response from Department of Works and Pension Policy Team state;
"It would not be right to ignore the fact that a small, but growing number of parents are entering into agreements to share the care of their children on an exactly equal basis. therefore under the new scheme, where there is evidence of exactly equal day to day care, neither parent will be required to pay statutory child maintenance. I.e. would not have a statutory case.
The test is applied here is that of equal day to day care. This involves the overall care arrangements for the child being shared equally and not just where they stay overnight. Parents who have been able to make an agreement where they entrust the care of their child to each other to this extent will be far bettre placed to decide between them how the financial needs of their child should be met.
A NACSA client received correspondence from a Policy Adviser in which it was stated;
"if the paying parent can satisfy the Child Maintenance Service that both parents in addition to sharing overnight care of their child almost equally, also have equal day to day care of the child too, then there will be no requirement for either parent to pay maintenance."
In all the cases brought to our attention to date, evidence has been provided to confirm that the care of the child is shared equally between parents. The Agency has acknowledged this status, but rejected the complaint and still proceeded with the application. This we believe is contrary to legislation and we will be campaigning to ensure the Agency imposes the law correctly.