Citation and commencement

1.–(1) These Regulations may be cited as the Child Support and Social Security (Miscellaneous Amendments) Regulations (Northern Ireland) 2009 and, subject to paragraph (2), shall come into operation on 6th April 2009.

(2) Regulation 6(3), (4)(a) and (b)(iii), (5), (8) and (9) shall come into operation, for the purposes of any type of case which is not one in relation to which 3rd March 2003 is the day appointed for the coming into operation of sections 8, 9 and 10 of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000(4), on the day on which those provisions come into operation in relation to that type of case.

Amendment of the Child Support (Maintenance Assessment Procedure) Regulations

2.–(1) The Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992(5) are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation) omit the definition "Information, Evidence and Disclosure Regulations".

(3) In Schedule 1 (meaning of "child" for the purposes of the Order), in paragraph 1(3)(b)(6) (persons of 16 or 17 years of age who are not in full-time non-advanced education), for "or income-based jobseeker´s allowance" substitute ", income-based jobseeker´s allowance or income-related employment and support allowance".

Amendment of the Child Support (Maintenance Assessments and Special Cases) Regulations

3.–(1) The Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992(7) are amended as follows.

(2) In regulation 1(2) (citation, commencement and interpretation)–

(a) after the definition of "patient" insert–

""pensionable age" has the meaning given by the rules in paragraph 1 of Schedule 2 to the Pensions (Northern Ireland) Order 1995(8);";

(b) after the definition of "profit-related pay"(9) insert–

""qualifying age for state pension credit" means–

(3) In regulation 9(1)(d) (exempt income: calculation or estimation of E), for "aged less than 60" substitute "who had not attained the qualifying age for state pension credit".

(4) In regulation 18(2)(a)(iii) (excessive housing costs), for "were aged less than 60" substitute "had not attained the qualifying age for state pension credit".

(5) In Schedule 2 (amounts to be disregarded when calculating or estimating N and M), after paragraph 15 insert–

"15A. A payment made by the Department for Employment and Learning under section 1 of the Employment and Training Act (Northern Ireland) 1950(10) by way of Return to Work Credit.".

Amendment of the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations

4. In regulation 10(4) of the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations (Northern Ireland) 1992(11) (adjustment of the amount payable under a maintenance assessment/calculation), for "(1), (3A) or regulation 15D of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999" substitute "(1) or (3A)".

Amendment of the Child Support Departure Direction and Consequential Amendments Regulations

5. For regulation 24 of the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996(12) (diversion of income) substitute–

"24.–(1) A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Order where–

(a) the non-applicant has the ability to control the amount of income that–

(i) he receives, or

(ii) is taken into account as his assessable income,

including earnings from employment or self-employment and dividends from shares, whether or not the whole of that income is derived from the company or business from which those earnings are derived; and

(b) the Department is satisfied that the non-applicant has unreasonably reduced the amount of his income which would otherwise fall to be taken into account under regulation 7 or 8 of the Maintenance Assessments and Special Cases Regulations by diverting it to other persons or for purposes other than the provision of such income for himself.

(2) In this regulation "assessable income" means the amount calculated in accordance with paragraph 5(1) to (3) of Schedule 1 to the Order, and regulations made for the purposes of that paragraph.".

Amendment of the Social Security and Child Support (Decisions and Appeals) Regulations

6.–(1) The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999(13) are amended as follows.

(2) In regulation 3A(14) (revision of child support decisions) omit paragraph (6).

(3) For regulation 6A(15) substitute–

"Supersession of child support decisions

6A.–(1) This regulation and regulation 6B set out the circumstances in which a decision may be made by the Department under Article 19 of the Child Support Order.

(2) A decision may be superseded by a decision of the Department, on an application or acting under its own initiative, where–

(a) there has been a relevant change of circumstances since the decision had effect or it is expected that a relevant change of circumstances will occur;

(b) the decision was made in ignorance of, or was based on a mistake as to, some material fact; or

(c) the decision was wrong in law (unless it was a decision made on appeal).

(3) The circumstances in which a decision may be superseded include where the relevant change of circumstances causes the maintenance calculation to cease by virtue of paragraph 16 of Schedule 1 to the Child Support Order or where the Department no longer has jurisdiction by virtue of Article 41 of that Order.

(4) A decision may be superseded by a decision of the Department where the Department receives an application for a variation of the decision under Article 28G of the Child Support Order.

(5) A decision may not be superseded in circumstances where it may be revised.

(6) A decision to refuse an application for a maintenance calculation may not be superseded.".

(4) In regulation 6B(16) (circumstances in which a child support decision may not be superseded)–

(a) wherever "6A(3)" occurs, substitute "6A(2)(a)";

(b) in paragraph (4)–

(i) at the end of sub-paragraph (c) insert "or",

(ii) omit sub-paragraph (d), and

(iii) in sub-paragraph (e), for "regulation 7B(1) to (3) or (20)"(17) substitute "paragraph 4 of Schedule 2D".

(5) For regulation 7B(18) (date from which a decision superseded under Article 19 of the Child Support Order takes effect) substitute–

"Effective date of a supersession decision

7B. Schedule 2D provides for cases and circumstances in which a supersession decision takes effect from a date other than the date specified in Article 19(4) of the Child Support Order.".

(6) In regulation 15C(19) (notification of a decision made under Article 18 or 19 of the Child Support Order) omit paragraphs (6) to (8).

(7) Omit regulation 15D(20) (procedure in relation to the adjustment of the amount payable under a maintenance calculation).

(8) In regulation 30A(21) (appeals to appeal tribunals in child support cases) for the words from "that an adjustment" to the end substitute "with respect to the adjustment of amounts payable under a maintenance calculation for the purpose of taking account of overpayments of child support maintenance or voluntary payments".

(9) After Schedule 2C(22) (date from which change of circumstances takes effect where a claimant is entitled to employment and support allowance) insert as Schedule 2D the Schedule set out in Schedule 1 to these Regulations.

Amendment of the Child Support (Maintenance Calculations and Special Cases) Regulations

7. In regulation 5(1) of the Child Support (Maintenance Calculations and Special Cases) Regulations (Northern Ireland) 2001(23) (nil rate)–

(a) at the end of sub-paragraph (e) insert "or", and

(b) omit sub-paragraphs (g), (gg) and (h).

Amendment of the Child Support (Variations) Regulations

8.–(1) Regulation 19 of the Child Support (Variations) Regulations (Northern Ireland) 2001(24), (income not taken into account and diversion of income) is amended as follows.

(2) In paragraph (4)(a), after "he receives," insert "or is taken into account as his net weekly income,".

(3) After paragraph (4) insert–

"(4A) In paragraph (4), "net weekly income" has the same meaning as in the Maintenance Calculations and Special Cases Regulations.".

Amendment of the Child Support Information Regulations

9. In regulation 14 of the Child Support Information Regulations (Northern Ireland) 2008(25) (employment to which Article 46 of the Order applies), for the words from "Article 46" to "that Article" substitute "For the purposes of Article 46(1C) of the Order, the following kinds of employment are prescribed as kinds of employment to which Article 46(1B) of the Order applies".

Revocations

10. The statutory provisions specified in Schedule 2 are revoked to the extent specified there.

Regulation 6(9)

SCHEDULE 1

Regulation 7B

"SCHEDULE 2D Effective dates for supersession of Child Support Decisions

1. This Schedule sets out the exceptions to the general rule in Article 19(4) of the Child Support Order (that is the rule that a supersession decision takes effect from the beginning of the maintenance period in which it is made or, where applicable, the beginning of the maintenance period in which an application for a supersession is made).

Expected change

2. Where the ground for the supersession decision is that a relevant change of circumstances is expected to occur or that a ground for a variation is expected to occur, the decision takes effect from the beginning of the maintenance period in which that change or that ground is expected to occur.

Decision backdated to when the change occurred

3. Where the ground for the supersession decision is that a relevant change of circumstances of the following kind has occurred, the decision takes effect from the beginning of the maintenance period in which the change occurred–

(a) a qualifying child dies or ceases to be a qualifying child;

(b) the person with care ceases to be a person with care in relation to a qualifying child;

(c) the person with care, the non-resident parent or a qualifying child ceases to be habitually resident in the United Kingdom; or

(d) paragraph 4(2) of Schedule 1 to the Child Support Order begins or ceases to apply.

Non-resident parent or partner on or off benefit

4. Where a supersession decision is made by the Department acting on its own initiative on the basis of information or evidence which was also the basis of a decision made by it under Articles 9, 10 or 11 of the Order, the decision takes effect from the beginning of the maintenance period in which that information is brought to the attention of the Department.

New qualifying child

5. Paragraphs 6 and 7 apply where the ground for the supersession is that there is a new qualifying child in relation to the non-resident parent.

6. Where there is a new qualifying child in relation to the same person with care–

(a) if the application is made by the non-resident parent, the decision takes effect from the beginning of the maintenance period in which the application is made; and

(b) if the application is made by the person with care the decision takes effect from the beginning of the maintenance period in which notification of the application is given to the non-resident parent.

7. Where there is a new qualifying child in relation to a different person with care and an application for a maintenance calculation has been made under Article 7 of the Child Support Order, the decision takes effect from the beginning of the maintenance period in which notification of the calculation is given to the non-resident parent.

Series of changes waiting to be actioned

8. Where a decision is superseded on application and, in relation to that decision, a maintenance calculation is made to which paragraph 15 of Schedule 1 to the Child Support Order applies, the effective date of the calculation or calculations is the beginning of the maintenance period in which the change of circumstances to which the calculation relates occurred or is expected to occur and where it occurred before the date of the application for the supersession and was notified after that date, the date of that application.

Own initiative decision

9. Unless paragraph 4 applies, where a decision is superseded in a case where the Department is required to give notice under regulation 7C, the decision takes effect from the first day of the maintenance period which includes the date which is 28 days after the date on which the Department has given notice (oral or written) to the relevant persons under that regulation.

Supersession of tribunal decision made pending outcome of a related appeal

10. Where, in accordance with Article 28ZB(5) of the Child Support Order, the Department makes a decision superseding the decision of the appeal tribunal or the Child Support Commissioner, the superseding decision takes effect from the beginning of the maintenance period following the date on which the decision of the appeal tribunal or, as the case may be, the Child Support Commissioner would have taken effect had it been decided in accordance with the determination of the Child Support Commissioner or the court in the appeal referred to in Article 28ZB(1)(b) of the Child Support Order.

Supersession of tribunal decision made in error due to misrepresentation etc.

11. Where–

(a) a decision made by the appeal tribunal or the Child Support Commissioner is superseded on the ground that it was erroneous due to misrepresentation of, or that there was a failure to disclose, a material fact; and

(b) the Department is satisfied that the decision was more advantageous to the person who misrepresented or failed to disclose that fact than it would otherwise have been but for that error,

the superseding decision takes effect from the date on which the decision of the appeal tribunal or, as the case may be, the Child Support Commissioner took, or was to take, effect.

Supersession of look alike case where law reinterpreted by the Child Support Commissioner or a court

12. Any decision made under Article 19 of the Child Support Order in consequence of a determination which is a relevant determination for the purposes of Article 28ZC of that Order takes effect from the date of the relevant determination."

Regulation 10

SCHEDULE 2 Revocations

EXPLANATORY NOTE

(This note is not part of the Regulations)

The powers exercised to make these Regulations are those contained in the Child Support (Northern Ireland) Order 1991 ("the Order") and the Child Maintenance Act (Northern Ireland) 2008 ("the 2008 Act"). Some of the powers exercised from the Order have been inserted by the 2008 Act. Some of the powers are conferred by provisions of the Order prior to the amendments made to it by the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 ("the 2000 Act"), some of which amendments are not fully in operation, and relate to the child support scheme which was in operation prior to 3 March 2003, and which remains in operation for the purposes of certain cases ("the old scheme"). Other powers are conferred by provisions of the Order as amended by the 2000 Act, which relate to the child support scheme provided for by those amendments, which came into operation for the purposes of specified categories of cases on 3 March 2003 (see the Child Support, Pensions and Social Security (2000 Act) (Commencement No. 9) Order (Northern Ireland) 2003) ("the new scheme").

Regulation 2 amends the Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992 by including, in Schedule 1 of those Regulations, a reference to income-related employment and support allowance, which was introduced by Part 1 of the Welfare Reform Act (Northern Ireland) 2007. The definition of the now obsolete Child Support (Information, Evidence and Disclosure) Regulations (Northern Ireland) 1992 is also removed from regulation 1.

Regulation 3 amends the Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992 ("the Maintenance Assessments and Special Cases Regulations") and makes the following amendments to old scheme cases.

Paragraph (2) inserts definitions for "pensionable age" and "qualifying age for state pension credit" into regulation 1.

Paragraphs (3) and (4) amend regulations 9 and 18, replacing the references to age 60 with references to the qualifying age for state pension credit. The Pensions (Northern Ireland) Order 1995 allows for the eventual equalisation of state pension age between men and women. The amendments to regulations 9 and 18 reflect that equalisation.

Paragraph (5) inserts a new paragraph, 15A, into Schedule 2. This new paragraph prescribes, for the purpose of disregarding amounts when calculating parents´ net income, any payment of Return to Work Credit under section 1 of the Employment and Training Act (Northern Ireland) 1950.

Regulation 4 amends the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations (Northern Ireland) 1992. This amendment is necessary as a consequence to the amendment to the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 ("the Decisions and Appeals Regulations"). See the relevant paragraph outlining that amendment below.

Regulation 5 amends the Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996 ("the Departure Direction Regulations"). The regulation substitutes regulation 24 of the Departure Direction Regulations to extend the ground in that regulation for a departure direction for diversion of income to a case where the non-applicant has the ability to control the amount of income which is taken into account as assessable income received from employment or self-employment and dividends from shares, and the Department is satisfied that this is income which would otherwise fall to be taken into account under the Maintenance Assessments and Special Cases Regulations. The amendment affects the old scheme and mirrors the amendment made in regulation 8 of these Regulations (see below) for the new scheme.

Regulation 6 amends the Decisions and Appeals Regulations. The amendment consolidates and simplifies certain provisions in the Decisions and Appeals Regulations relating to revision and supersession of child support decisions. To that end, regulation 6A has been substituted, and a new Schedule, Schedule 2D, replaces regulation 7B, which sets out the exceptions to the general rule in Article 19 of the Order as to the date from which a supersession decision takes effect. Provisions regarding adjustment of amounts payable under a maintenance calculation in relation to voluntary payments and overpayments of child support maintenance have been amended so that Articles 18 and 19 of the Order no longer apply, but the right of appeal is retained.

Regulation 7 amends the Child Support (Maintenance Calculations and Special Cases) Regulations (Northern Ireland) 2001, ("the Maintenance Calculations and Special Cases Regulations") by removing from the categories of persons liable for the nil rate of child support maintenance those persons who have been hospital in-patients for 52 weeks or more. This is a result of the revocation of the Social Security (Hospital In-Patients) Regulations 1975 on 10 April 2006 by the Social Security (Hospital In-Patients) Regulations 2005, from which date the benefits of hospital in-patients are no longer down-rated. As a consequence of this change, such persons are no longer subject to the nil rate of child support maintenance.

Regulation 8 amends regulation 19(4) of the Child Support (Variations) Regulations (Northern Ireland) 2001 ("the Variations Regulations"). The amendment extends the ground for a variation for diversion of income to a case where the non-resident parent has the ability to control the amount of income which is taken into account as net weekly income received from employment or self-employment, and the Department is satisfied that this is income which would otherwise fall to be taken into account under the Maintenance Calculations and Special Cases Regulations, or under regulation 19(1A) of the Variations Regulations. A new paragraph, (4A), is inserted after regulation 19(4) to make clear the meaning of net weekly income. These amendments affect the new scheme and mirror the amendment made in regulation 5 of these Regulations (see above) for the old scheme.

Regulation 9 amends the Child Support Information Regulations (Northern Ireland) 2008. It prescribes the kinds of employment to which the offence for unauthorised disclosure of Article 46(1B) of the Order applies.