Child maintenance calculations
10. Miss A complains that CMS failed to consider another relevant child when it calculated payable child maintenance payments for Mr O. Miss A complains that Mr O told CMS about the relevant child several times over many years, but it continued not to consider this in its calculations of payments.
11. ICE’s complaint response says that records of Mr O’s contact with CMS are limited due to its data retention policy and that available records show that when requested by CMS, he did not agree to provide further information about the relevant child. ICE says there is a set route to challenge CMS decisions and there is no record of this route being followed.
12. CMS is part of the DWP and carries out its role of making child maintenance decisions on behalf of the Secretary of State, in line with the Child Support Act 1991. The route to challenge a child maintenance decision is laid out in the DWP’s Mandatory Reconsideration process, which says:
‘Mandatory reconsideration is a request for a decision to be reconsidered by Child Maintenance Group (CMG) before accruing the right to appeal to an independent tribunal - Her Majesty’s Court And Tribunal service (HMCTS).’
13. If a person disagrees with a decision about child maintenance liability, they should request a Mandatory Reconsideration of the decision. If after this the person is still unhappy, then an application should be made to HM Courts and Tribunals Service (HMCTS) to make an appeal to be considered by a Tribunal. There is a time limit to request a Mandatory Reconsideration of 30 days (from receipt of the decision) and a maximum time limit of 13 months to make an appeal application.
14. The law which allows us to look at complaints says:
‘Except as hereinafter provided, the Commissioner shall not conduct an investigation under this Act in respect of any of the following matters, that is to say— (a)any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative; (b)any action in respect of which the person aggrieved has or had a remedy by way of proceedings in any court of law: Provided that the Commissioner may conduct an investigation notwithstanding that the person aggrieved has or had such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it.’
15. As there is a specific route to challenge child maintenance decisions and we have no reason to believe that Mr O was denied this right or that it was unreasonable for him to take this route, we are unable to consider this part of the complaint. We do recognise this is unlikely to be the outcome they wanted and the opportunity to challenge and appeal has now passed. We hope our explanation clearly lays out the reasons for our decision.
Data concerns
16. Miss A complains that CMS breached General Data Protection Regulation (GDPR) as it no longer has all the data relating to Mr O’s case.
17. ICE’s complaint response says that CMS’s data retention policy is to keep data in relation to decisions for 14 months and there is no sign that it did not act in line with this policy.
18. We do recognise Miss A’s concerns here but we are not the right organisation to consider the data practices of another organisation. The ICO can consider concerns about data matters, and we have decided it would be appropriate for Miss A to ask ICO about her concerns if she wishes to take this matter further.
Collection of arrears payment
19. Miss A complains that CMS debited a higher rate of arrears payment in December 2021, despite its agreement of a reduction a week earlier.
20. ICE’s complaint response says it found that CMS made an error when it failed to notify its legal enforcement team of the reduction. After ICE’s contact, CMS agreed to provide an apology to Mr O and offer a consolatory payment of £50.
21. As ICE already identified maladministration (fault) here, we looked at our own guidance and the DWP guidance for financial remedy in these circumstances. It is important to note that the payment taken was deducted from the arrears amount owed, which as we have noted above is outside of our remit. Our consideration here is to look at the impact of the unexpected higher deduction and not the overall amount deducted based on CMS’s calculations.
22. Mr O had agreed a lower arrears payment with CMS on 2 December 2021. On 10 December, CMS debited the higher value payment from Mr O. He told CMS and it notified its enforcement team on 14 December to amend the payment amount to the agreed value. We recognise that the unexpected higher value debit would have caused Mr O anxiety and frustration. Our scale of injustice (a tool we use to work out how severely someone has been affected by what happened and what level of payment we think would put this right) says:
‘Level 1 (Financial remedy not appropriate)
These will usually be injustices such as annoyance, frustration, worry or inconvenience, typically arising from a single (one-off) incidence of maladministration or service failure, where the effect on the individual is of short duration, and where there are no other adverse effects or ongoing wider impact. Assuming that there are no issues of vulnerability, that the person affected is an adult of reasonable physical and mental health, and there are no external factors to exacerbate the injustice, we would expect them to recover from the injustice very quickly once the direct impact of the poor service comes to an end. We would generally consider an apology to be an appropriate remedy for level 1 injustice.’
23. DWP’s guide, ‘Compensation for poor service’, says:
‘Category 3: Consolatory payments 5.9. A special payment may be considered under this category where the customer (or a third party) has suffered injustice or hardship arising from maladministration.
and
5.11. Consolatory payments usually range between £50 and £500, although lower or higher payments may be appropriate having considered the individual circumstances of a case, in the context of the guiding principles.’
24. From the above guidance, we can see that while our own guidance says that a financial payment would not be appropriate in these circumstances, CMS agreed to make a consolatory payment in line with its own guidance. So, we have decided that CMS has done enough to put things right here. We hope Miss A and Mr O are reassured by our considerations.