Child Maintenance Service (CMS)

5.Ms A complains the CMS has failed to collect the outstanding balance of maintenance owed to her. She says this is unfair and she is unhappy with the arrangements the CMS and Mr C have come to for monthly payments. She believes this arrangement puts her at a financial disadvantage.

6.Ms A tells us this has been a difficult and stressful time, and she says the maintenance payments are too low, causing financial hardship.

7.She would like a financial payment of at least £9,532.99, which is the outstanding arrears balance.

8.Mr R tells us his daughter is experiencing significant financial hardship due to the non-payment of child maintenance arrears by Mr C.

9.Mr R told us the CMS has come to an agreement with Mr C for monthly payment of arrears. But, Mr R tells us the monthly amount agreed is too low and the financial impact on Ms A is significant.

10.Ms A complained to the CMS in early 2023 and got a response dated 10 February 2023. As she was unhappy with the response, Mr R called CMS on 17 February and spoke with an adviser.

11.The CMS sent a response and explained that while it understood Ms A was unhappy with the arrears repayment arrangement, it believed that this was the best option because it would make sure maintenance payments continued to be made, even if they were lower than Ms A would like.

12.The CMS explained it could not take any further enforcement action against Mr C because he was making the regular payments. The response gave Mr R the details for the Independent Case Examiner (ICE) if he wished to take his complaint to the next stage of the complaint process.

13.Mr R contacted the CMS again on 26 April 2023 through his MP and his MP got a response from the DWP dated 4 May. This response repeated the CMS’s explanation that it could not take any enforcement action against Mr C because he was making regular payments in line with his agreement with the CMS.

14.The letter explained it may only take enforcement action in situations where a parent is not paying in full, or on time and all other options have been considered. The letter also explained the CMS was not able to cancel a repayment arrangement if payments were being made regularly and on time. The CMS acknowledged Mr R’s frustration with the situation but said no further action could be taken.

15.Shortly after this, Mr R contacted ICE and submitted a complaint about the CMS. He said the CMS had not taken enough action to collect the unpaid child maintenance balance and he would like this to be collected. The ICE did not uphold Mr R’s complaint and he brought his complaint to us.

17.Both CMS and ICE explained that Mr C is keeping to his payment schedule. This means that the CMS cannot take any enforcement action against him.

18.ICE explained that as the next stage in the complaints process, it had no power or authority to collect unpaid maintenance payments, or to say what enforcement action the CMS should use. We should explain that like ICE, we do not have the authority to directly intervene and collect unpaid maintenance.

19.ICE explained that Ms A’s CMS case has been open since June 2019 and Mr C is liable to pay maintenance for their three children. Mr C made some payments between July 2019 and May 2021. But, because Mr C did not always make payments at the correct time, the CMS changed the payment service type to Collect and Pay and applied for a Liability Order (LO) against the debt that had arisen due to missed maintenance payments.

20.Collect and Pay is a service offered by the CMS in situations where the paying parent, in this case Mr C, has not made the correct regular payments. In these circumstances the CMS will collect payments from the paying parent and then pass these to the parent with the care of the children. There are several ways of doing this and this method makes sure that the parents do not need to have any contact with each other. It also carries charges, which is not the case with direct payment arrangements between parents.

21.An LO is often used in situations where a parent has not made regular payments and the CMS applies for an order from a court so it can take legal action. The LO recognises that a parent has not paid child maintenance for a specific period of time and allows the CMS to take certain steps to collect the unpaid child maintenance. The CMS guidance, ‘Child maintenance: liability orders’ provides more information about this process.

22.A court granted an LO in Ms A’s case for unpaid maintenance of £12,391.53 for the period between 22 June 2019 and 21 October 2021. But, at the same time as applying for the LO, Mr C started to cooperate with the CMS so it took the decision to take no further enforcement action.

23.The CMS and Mr C reached an agreement that he would make payments of £500 from 1 April 2022. From this figure, £127.94 went towards the outstanding arrears that had accumulated between 2019 and 2021. Ms A and Mr R tell us that the amount agreed for the repayment of the arrears is too low.

24.Between April and November 2022 Mr C kept to the arrangement so the payment arrangements were changed back to Direct Pay (which is where the paying parent pays the other parent directly, without CMS intervention and fees) in November 2022. The CMS and Mr C negotiated a new payment schedule in December 2022, which saw a drop in the monthly payments to £400.53 per month, of which £81 went towards paying off the unpaid maintenance arrears.

25.Mr R complained about this to the CMS in January 2023 and said the CMS should be taking enforcement action. Mr R told the CMS that Mr C was in the process of selling property which would give him a large sum payment.

26.The ICE report said the CMS ‘acted reasonably’ and it would not be taking any further action. It explained that as Mr C was making regular payments, in line with his agreement with the CMS, the CMS decision not to take further action was in line with its guidance. The ICE also explained that the sale of Mr C’s property did not allow CMS to take enforcement action, given that he was making the payments as agreed.

27.We reviewed the guidance the CMS uses when making decisions about child maintenance, mainly the ‘Child Maintenance decision makers’ guide’ (the Guide). Volume six, chapters 49 onwards explain how the CMS should approach arrears and enforcement. This is the guidance that a CMS decision maker (DM) uses when reviewing a case like Ms A’s and deciding how much the parent should pay.

28.The Guide explains that ‘the DM may only start making arrangements for collection and or enforcement of arrears where the NRP [non-resident parent like Mr C] has been given a notice that such arrangements will be considered where there is a failure to make one or more payments of child maintenance’. The Guide goes on to explain what action may be taken in situations where a parent has not made payments.

29.The Guide explains what DMs should do when considering the collection of child maintenance arrears. It says they should negotiate an acceptable agreement or arrangement to make sure payments for the benefit of the child or children begin as soon as possible.

30.We understand Mr R’s frustration and how they feel the payments are too low. It is important to explain that when considering the repayment of arrears, the DM has to consider something called ‘The Debt Steer’. The Guide gives more information about this and put simply, the debt steer provides a policy-based framework that aims to make sure that CMS can collect outstanding arrears quickly and reliably.

31.We know in Ms A’s case that there is a large arrears balance due to non-payment by Mr C between 2019 and 2021. So, when negotiating an agreement with Mr C about the repayment of arrears, the CMS must make sure any agreement ‘prevents him getting into more debt’.

32.The CMS must consider what Mr C can afford to pay because asking him to pay more could cause financial difficulties and mean he is unable to pay anything.

33.This means that when negotiating a suitable agreement or arrangement the DM must review all parts of the case, including what a parent can afford to pay as soon as possible. The main aim of the DM is ‘to get on-going maintenance payments flowing’. We can see that this is what the CMS tried to do in Ms A’s case to make sure there is a regular flow of arrears payments, as well as the ongoing maintenance payments.

34.We have not seen any sign of failings by the CMS in the way it reached its repayment agreement with Mr C. It appears to have acted in line with its guidance.

35.As CMS and ICE have explained, Mr C is making regular payments and so it is not able to take further action at this time. We know Ms A and Mr R do not agree and if there are times when Mr C does not keep to the current arrangement, they should raise this with CMS.

36.We know Ms A is worried about the arrears and financial pressures on her family and that Mr R is frustrated on his daughter’s behalf. We hope we have clearly explained how we have reached this decision.

1.We have carefully considered Ms A’s complaint about the Child Maintenance Service (CMS), sent to us by her father, Mr R, who is supporting her. We were sorry to learn about the frustration and distress they have experienced when dealing with child maintenance payments arrangements for the father of Ms A’s children, Mr C.

2.Having looked at the evidence and the relevant guidance that tells CMS how it should carry out its work, we have decided to take no further action. This is because we can see that there are no signs of failings by the CMS.

3.We appreciate Ms A and Mr R strongly disagree with the CMS decision and in reaching our decision we have thought carefully about the concerns they have raised.

4.We hope this statement clearly explains why we have reached our decision.