Child Maintenance Service (CMS)

4. Mr R complains about the CMS. He says that, despite repeatedly providing evidence of his low income from 2016 to 2021, the CMS ignored this information and used outdated tax figures from 2014/15 to calculate his liability for child maintenance. Mr R says his accountant confirmed his low earnings from 2016 to 2021, and due to his low income, no tax return was required to be filed with HMRC.

5. Mr R also complains that the CMS did not consider the money his ex-wife owed him while his daughter was living with him. He says that the CMS claims the case was closed and that it has not retained the information due to data protection legislation, but he was never informed of the case being closed.

6. Mr R says that this situation has seriously impacted his mental health, as he is being asked to repay arrears he does not owe. He tells us that trying to deal with this issue has taken its toll, as he has provided proof, but the CMS is not willing to listen.

7. Mr R would like the CMS to change its decision that he is responsible for arrears, having taken into account the money that is owed to him from his own maintenance claim against his ex-wife.

8. Mr R has been liable to pay child maintenance since 9 August 2015, in respect of his two children with his ex-wife. On 8 August 2016, CMS completed a new calculation to reflect that Mr R’s daughter had gone to live with him and removed her from his ex-wife’s maintenance claim.

9. CMS completed several calculations over the years of the maintenance claims. Calculations carry a statutory right of appeal, with the first step being a request for a Mandatory Reconsideration (MR). If someone remains unhappy with the outcome of an MR, they can ask a tribunal to consider their appeal. We understand that neither Mr R nor his ex-wife requested an MR for any of the maintenance calculations CMS completed, with the exception of the annual review which was completed on 9 August 2021.

10. That MR was refused on 19 September 2021, and a decision notification was sent to Mr R, which provided details on how he could appeal to HM Courts and Tribunals Service (HMCTS) to ask a tribunal to consider his appeal if he disagreed with the decision. Mr R did not pursue this with HMCTS but instead made a complaint to CMS about failure to follow its processes in the handling of the maintenance claim.

11. Mr R was unhappy with CMS’s responses to his complaint and so approached the Independent Case Examiner (ICE) as the next stage of the complaints process. The ICE accepted the complaint on the 13 June 2023 and issued its findings on 28 September 2023. Mr R remains unhappy with the outcomes of the ICE’s investigation and so approached our Office.

Maintenance liability calculations

14. Mr R says he repeatedly provided evidence of his low income from 2016 to 2021 but CMS has ignored this information and used outdated tax figures to calculate his liability. We understand that Mr R says he was going through a very difficult time and this is why he did not take the action to appeal the maintenance liability decisions CMS reached as a result of those calculations.

15. Where someone has or had a legal route to challenge a decision and it is (or was) reasonable for them to follow that route to achieve the outcome they are looking for, we cannot look further at those matters. This is set out in the Parliamentary Commissioner Act 1967 section 5(2). Simply put, if someone has (or had) a legal route available to achieve what they are looking for, and if it is (or was) reasonable for them to pursue it, we cannot consider those matters.

16. For the decisions regarding Mr R’s child maintenance liability and the figures used, these had a statutory route of appeal via MR and appeal to a tribunal. Mr R did not exercise his MR rights for the majority of the liability decisions, which was the correct route to follow. Where he did request an MR for the 9 August 2021 annual review decision, Mr R began the appeals process by completing an MR but then decided not to pursue the appeal further to a tribunal. It is clear that Mr R had a legal route open to him to achieve the outcomes he is looking for.

17. We may not revisit any decisions open to MR and a tribunal. We have no remit to do so in our role. Mr R has told us he was going through a very difficult time in his personal life during these events and that he felt disengaged and upset. We have therefore considered whether it was reasonable for him to pursue the appeals route.

18. We can see that Mr R continued to dispute the calculations and maintenance liability decisions directly with CMS throughout this period, so we have not seen that there were any barriers to him also requesting an MR and pursuing the appeals route. Given that the appeals route is specifically intended to explore matters of incorrect liability decisions, and the only forum which can achieve the legally binding change of decision Mr R is looking for, we can see it would have been reasonable for him to pursue that route.

19. As such we cannot consider this part of Mr R’s complaint.

Consideration of money owed by ex-wife 20. Mr R also complains that the CMS failed to consider information he provided about money his ex-wife owed him while his daughter was living with him. We can see that Mr R had a case open as the receiving parent between May 2016 and December 2019, i.e. he had made a claim for maintenance from his ex-wife. In its response to the complaint, CMS advised it had deleted the records for that case, in line with its responsibilities under data protection legislation.

21. We can see that the ICE was unable to reach a decision on this matter due to the lack of evidence available from CMS and Mr R. CMS destroyed the relevant files in line with its 14-month data retention policy. This means we are unable to see what information Mr R provided to CMS and what action CMS took in response.

22. We looked at DWP’s ‘Managing customer records’ guidance to see if it acted in line with its obligations in managing this evidence and in its response to Mr R’s complaint. It says:

‘Telephone call recording: Specific retention periods apply for telephone calls recorded in DWP operations. These are as follows: • supporting calls: 14 months from date of call and then deleted non-supporting or ephemeral calls: 4 weeks from date of call and then deleted.

Non-telephone records

The following retention policy is applied to all non-telephone records in DWP: • supporting records: generally, records classified as supporting are retained for 14 months after DWP’s live interest in the claim has ended.’

23. As the case closed in December 2019 and Mr R raised this issue with CMS in August 2021, we can see that it acted in line with guidance in not retaining the data on Mr R’s case as the receiving parent. This means the above policy supports CMS’s response to Mr R’s complaint that there is nothing it may now say on those matters as it no longer retains the evidence to do so. As such, so there is nothing further for us to review and so we are not able to reach any view on the balance of probabilities as to whether CMS handled Mr R’s case as it should, in line with applicable guidance and standards for considering evidence in reaching liability decisions.

24. We know this will feel like an unsatisfactory outcome for Mr R, and we have not reached this conclusion lightly. The difficulty in this case is that we simply do not have enough evidence to reach a view whether CMS did or did not act in line with its standards for considering evidence relating to liability for maintenance, and we have no way of reconciling the different views of what took place.

25. With the above in mind, and having thought carefully about these matters, we will take no further action. We know Mr R continues to feel upset and frustrated by these events, so we hope we have clearly explained how we thought about what he told us and how we reached our decision in this case.

1. We have carefully considered Mr R’s complaint about the Child Maintenance Service (CMS), an agency of the Department for Work and Pensions (DWP). We are sorry to learn the reasons for Mr R’s complaint, and the stress he tells us he experienced throughout these events.

2. After reviewing the evidence provided by Mr R and CMS, we can see that it was open to him to take legal action on the decisions regarding his child maintenance liability and ask a tribunal to consider those matters. We are not able to consider matters where someone has already taken legal action for the outcomes they seek, or where they have a legal route to achieve those outcomes and it is reasonable for them to follow it, so we are not able to look further at these issues.

3. Due to the lack of evidence available, we are not able to give any view that something went wrong regarding the other complaints Mr R has raised with us. Despite making enquiries to CMS and carefully reviewing the evidence that we can see, we are unable to make a decision on the balance of probabilities whether CMS failed to act within applicable guidelines and standards on those issues. As such, we have decided to take no further action, and we will explain our reasons in this statement.