Child Maintenance Service (CMS)

5.Mr A, represented by his wife, Mrs A, complains to us about the service that he has received from the CMS. In particular, he tells us that the CMS failed to communicate effectively with him and Mrs A, it did not call back when it said it would, and it provided inconsistent information from June 2021 onwards. In addition, he tells us that his case was moved to ‘Collect and Pay’ in November 2021 and says this should not have happened.

6.Mr A says the events of this complaint have caused a lot of stress and anxiety and have disrupted his family life. In particular, Mr A tells us his relationship with his daughter has been negatively affected. He tells us the case has also had a detrimental financial impact on the family. He says that he has suffered from poor sleep and high blood pressure due to the stress of the situation.

7.Mr A would like financial compensation of £5,000 to put right the stress and disruption the events of this complaint have caused him and his family.

8.Mr A is unhappy with the service he has received from the CMS, particularly in respect of its communication with him. He tells us he did not receive call backs when expected and the CMS provided information that was inconsistent. Mr A is also unhappy with the CMS’s decision to move his case from ‘Direct Pay’ to ‘Collect and Pay’ in November 2021.

9.Mr A has been making child maintenance payments of £62.40 directly to Ms B for their daughter once a week since 12 April 2021. Where parents pay each other directly, known as Direct Pay, the CMS is not involved, other than to calculate maintenance, and the parents arrange the payments amongst themselves.

10.Mr A contacted CMS in July 2021 and said his daughter was no longer in full-time education and therefore should no longer qualify for child maintenance. The CMS wrote to Mr A shortly after and said it had contacted Ms B for clarification, who had advised it that his daughter was still in full-time education and qualified for child maintenance.

11.CMS noted that Ms B was still in receipt of Child Benefit (CB), which is administered by HM Revenue and Customs (HMRC), and so Mr A’s information did not result in any change of his maintenance liability. Where someone is receiving CB for their child, they are usually also entitled to child maintenance.

12.The CMS provided Mr A with information on requesting a Mandatory Reconsideration (MR) if he wished to appeal its decision to make no change to his liability. MR is the first step in the statutory appeals process to challenge a CMS decision. If someone remains unhappy following an MR decision, they can refer their case to a tribunal via HM Courts and Tribunal Service (HMCTS).

13.Mr A contacted the CMS again on 19 July 2021 to report that his daughter was no longer in full time education. The CMS wrote to Mr A on 27 July 2021 and said Ms B had again advised it that his daughter was in full-time education, which it confirmed following contact with Ms B, and therefore he remained liable for child maintenance. As before, the CMS provided Mr A with information about his MR rights.

14.Mr A contacted the CMS about the same matter on 17 August and 6 September. The CMS sent a response on 8 September 2021 and reiterated that its enquiries had shown Mr A’s daughter’s educational status had not changed and so it understood she remained a qualifying child for maintenance purposes. The CMS’s records at this time showed that Ms B would be in receipt of CB until 5 September 2022.

15.Mr A contacted the CMS several further times about this matter, including calling the CMS on 11 October 2021. As before, he raised concerns about his daughter’s educational status and asked for a call back. The records do not show any evidence that CMS made a call to him as requested. The CMS treated this most recent contact as an MR request from Mr A.

16.Mr A contacted the CMS on 26 October 2021 and during the call he asked the CMS to pause his child maintenance liability as he had reported that Ms B was fraudulently claiming CB and the MR was in progress. The CMS explained that, as the MR was ongoing, it could not pause his liability. However, it said any payments Mr A made to Ms B, if it emerged that she had claimed them without being entitled to them, could be returned to him at a later date.

17.The CMS contacted Mr A on 27 October 2021 to advise him his MR request had not been successful, and it had upheld its original decision, and so Mr A was liable to continue to pay maintenance to Ms B. The MR notification included information on how Mr A could appeal to a tribunal via HMCTS if he remained unhappy with the outcome.

18.Mr A called the CMS again on 28 October 2021. He explained he was unhappy that his maintenance liability could not be paused, and CMS reiterated that it was obliged to reflect his daughter’s CB status. The CMS advised Mr A that he should continue to make payments to Ms B or his daughter in line with his most recent payment plan. Mr A told the CMS he would withhold payments until the situation had been resolved.

19.Ms B contacted the CMS shortly after this to inform it that Mr A had missed the most recent payment. Subsequently, the CMS contacted Mr A about this, and he explained he would be appealing the recent MR decision to a tribunal.

20.The CMS then moved Mr A’s case from ‘Direct Pay’ to ‘Collect and Pay’ on 1 November 2021, which would be effective from 4 October 2021, and it imposed a Deduction from Earnings Order (DEO). Collect and Pay is where the CMS calculates the maintenance a person is liable for, and then takes steps to collect the payments to pass on to the other parent. CMS will collect a fee from the paying parent when Collect and Pay is in place, as opposed to Direct Pay which attracts no fees.

21.Essentially, this meant Mr A would pay the CMS, who would then pass this payment on to Ms B. A DEO is a method by which the CMS will deduct maintenance payments from the paying parent’s earnings or pension.

22.The CMS sent Mr A a new DEO payment plan on the day it was introduced (1 November 2021), which said the new payments would start from 2 November 2021. The DEO payment plans said payments of £530.25 would commence from 2 November 2021. Mr A contacted CMS on 4 November 2021 to say he was unable to afford this new payment plan and instead proposed monthly payment plans of £400, which he said were affordable for him.

23.The CMS sent Mr A a new payment plan on 9 November 2021 for payments of £397.53. It also called on the same day and left a message outlining these changes to Mr A. Mr A sent the CMS a message the following day and said he was unhappy about the CMS’s attempted call as he had previously advised it not to call him at that time.

24.Mr A sent a written complaint to the CMS, which it received on 11 November 2021. This focused on Mr A’s concerns that the CMS had not acted on the information he had provided about his daughter’s educational status. Shortly after this, HMCTS informed the CMS that Mr A had appealed the MR decision to a tribunal.

25.Mr A continued to message the CMS about his concerns and asked about his complaint, as well as requesting updates about its investigations into his daughter’s educational status. As a result, the CMS sent Mr A another letter on 17 December 2021, its fourth on the matter, outlining that it considered he was still liable for child maintenance. Mr A responded the following day outlining his dissatisfaction with the CMS’s correspondence.

26.The CMS then wrote to Mr A on 21 December 2021 and said it had removed the DEO due to a misunderstanding about his daughter’s CB status. The letter reiterated that the evidence available to it showed Mr A’s daughter was in full-time education or training and therefore Mr A was liable for child maintenance. Mr A’s MP emailed the CMS on his behalf the following day in respect of this matter.

27.Mr A contacted CMS via phone several times and received a phone call from CMS on 30 December 2021. The telephone notes show CMS corrected the advice it had previously given Mr A about the reimbursement of overpaid maintenance and said any overpayment would be taken into consideration; however, repayment would not be automatic. The notes show that the CMS said it would call Mr A after its investigation into his complaint had finished.

28.The CMS contacted Mr A on 6 January 2022 to say it had referred his concerns to its Complaints Team. Mr A’s MP sent a further email on 17 January 2022. The CMS Complaints Team referred Mr A’s concerns to its Appeals and Guidance Team on 27 January 2022. This referral was made specifically to clarify whether the course Mr A and Ms B had told the CMS his daughter was taking should be classed as full-time non-advanced education for the purposes of child maintenance.

29.The Advice and Guidance Team provided a response on 28 January 2022 and considered if the course would qualify under the criteria; the Team indicated it did not think it would qualify. In addition, it said that for child maintenance purposes, Mr A’s daughter would be classed as a child if CB was being paid for her irrespective of her educational status.

30.The CMS responded to Mr A’s MP by acknowledging and apologising for the ‘misleading’ information it had given. This was specifically in respect of its comments that Mr A’s daughter’s educational course was ‘significant when only was CB was’, as it had given Mr A the impression that its decision about his liability was based on his daughter’s educational status when it was primarily based on his ex-partner’s eligibility for CB. In addition, the CMS apologised for not calling Mr A on occasions where it had said it would.

31.The CMS reiterated its view that Mr A’s daughter was a child for maintenance purposes and that Mr A was liable for maintenance payments. The CMS also offered a consolatory payment of £50 for its poor communication, which Mr A declined. The CMS response referred Mr A to the Independent Case Examiner (ICE) if he remained unhappy and wished to escalate his complaint to the next stage of the complaints process.

32.Mr A contacted ICE and his complaint was received in its Office on 8 June 2022. In the meantime, his appeal was successful and in November 2022 a tribunal found that his daughter was not eligible for maintenance. ICE issued its report into Mr A’s complaint on 19 October 2023 and explained that it would not be taking further action as although it found CMS had made mistakes, it considered CMS had already taken steps to put things right. As he remained unhappy with this decision, Mr A brought his complaint to our Office in February 2024.

35.Mr A has brought his complaint to us as he remains unhappy with the responses he has received from the CMS and ICE following his complaint. He tells us that he and his wife repeatedly informed the CMS that his daughter was not in full time education and therefore he was not required to provide maintenance payments.

36.As we can see from the background provided above, CMS explained to Mr A on several occasions that because Ms B was in receipt of CB, he remained liable for child maintenance and so the maintenance payments should continue. As part of our consideration of the complaint we have reviewed the responses from the CMS and ICE, in addition to the relevant guidance and policies that the CMS follows when it considers cases such as Mr A’s.

37.The Child Support Act 1991 (the Act) defines what is classed as a ‘qualifying child’ (QC). The CMS’s ‘Decision Makers Guide’ (the Guide), which sets out the steps CMS must take when carrying out its work, reflects the provisions of the Act. Section 05004 of the Guide describes a child for child maintenance purposes as being:

‘1. under the age of 16 or 2. under the age of 20 and are a qualifying young person.’

38.The Guide offers further information about what it classes as a ‘qualifying young person’ at Section 05005, which explains:

‘1. they are aged 16 – 19, and 2. child benefit is payable, or 3. they are in full-time, non-advanced education, or 4. they are receiving home education, approved by the local authority and for which they have received a statement of special education needs from that local authority’

39.This is in line with section 55(2) of the Act and sections 2 and 3 of The Child Benefit Regulations 2006 (the Regulations). The Guide explains defines ‘full-time education’ in Section 05008 as ‘education undertaken in pursuit of a course, where the average time spent during term time in receiving tuition, engaging in practical work, or supervised study, or taking examinations exceeds 12 hours per week’.

40.CMS’s response letter of January 2022 explained it had asked Mr A for evidence of his daughter’s educational status and he had not provided any. The MR concluded that the CMS decision would remain unchanged as Ms B was in receipt of CB.

41.The CMS’s final response recognised that Mr A had progressed his case to HMCTS and at the time of its letter, the Tribunal response had not been issued. As set out above, the documentation provided by Mr A shows that in November 2022, the Tribunal allowed his appeal.

42.The Tribunal Judge raised concerns about possible issues with CMS’s approach to concerns about whether a child is taking a relevant course for maintenance purposes which had been exposed by Mr A’s appeal. The Judge said he hoped these would be reviewed at a managerial level by the CMS. He highlighted that while it is ‘generally appropriate’ for the CMS to follow HMRC’s determination as to whether a parent is entitled to CB, and whether CMS is satisfied the child qualifies for maintenance on this basis, the CMS ‘must make its own decision about whether or not the child does or does not fall within the definition’.

43.The Judge highlighted that the evidence available clearly showed that Mr A’s daughter was not in full-time education as described by the Regulations. The Judge pointed out that for the purposes of child maintenance payments, Mr A’s daughter did not qualify during the disputed period. It was on this basis that the Tribunal upheld the appeal by Mr A.

44.The complaint brought to us relates to the actions of the CMS and not HMRC, so we cannot give any view on HMRC’s decision that Ms B qualified for CB. What we can consider is whether CMS acted in line with its own standards and guidance in considering the evidence available to it and reaching its decision that Mr A’s daughter still qualified.

45.Having thought carefully about this, we can see that CMS did not act in line with that guidance. The Guide sets out in Chapter 96, section 96045 onwards, the criteria for referrals to its Financial Investigation Unit (FIU), which is set up to explore concerns of this nature. Specifically, where a paying parent raises concerns that the resident parent is receiving maintenance to which they are not entitled, the CMS should make a referral to its FIU. The referral can take place at any point during the lifespan of a maintenance claim.

46.Mr and Mrs A tell us that CMS’s failure to refer the complaint to the FIU at an earlier stage in the process meant it did not identify promptly that Mr A’s daughter should not be considered to meet the criteria of a qualifying child. They tell us that if this had occurred, it is possible that the Tribunal could have been avoided altogether and the matter would not have taken as long to resolve as it did.

47.We contacted the CMS to ask it for more information about the FIU referral process. As explained by the ICE, the CMS recognised that a prompt referral to the FIU could have shortened the overall time taken for the matter to be resolved. We asked the CMS if an early referral would likely have led to it making a different decision without Mr A having to approach a tribunal.

48.The CMS explained that it cannot give a view what would likely have happened in this particular case, based on the evidence available. It is possible the FIU may have found that Mr A’s daughter was not in full-time education, but it may also have led to no change of decision, in which case Mr A would still have needed to appeal to a tribunal.

49.CMS also explained that a referral to the FIU, and a possible FIU investigation, could have taken a considerable amount of time, based on what it could see of its average timescales. CMS provided us with its internal guidance (‘FIU – Summary’), which explains how the FIU investigation process works.

50.We are unable to share this guidance directly with Mr and Mrs A for security reasons. However, we have reviewed the guidance and can see from the information provided that there are various factors that the FIU needs to consider, which indicate any investigation would likely take some time.

51.This means that we cannot say, on the balance of probabilities, that if CMS had made an earlier FIU referral that it would have led to this issue being resolved quickly, nor that it would have meant Mr A would have avoided the need to appeal to a tribunal.

52.What we can say is that CMS’s lack of timely referral meant that Mr A was in a position where he repeatedly shared his concerns with CMS and could not see any evidence that it was acting on those matters. This meant that he was understandably frustrated and distressed, and we explained later in this statement how we have thought about what CMS has done to put right that avoidable impact to Mr A.

53.Mr A also complains that CMS moved his case to Collect and Pay, and later put in place a DEO. The CMS explained the DEO had been put in place following a phone call from Ms B on 11 October 2021, in which she told the CMS Mr A had not made the required payment on 4 October 2021. The CMS spoke with Mr A on 12 October 2021, and he said he had not made the payment as he was awaiting the MR response. During the call, Mr A told the CMS he would make up the payments if his MR was rejected.

54.The CMS explained that the MR was declined, and Mr A did not make the missed payment as he had previously said he would. Therefore, the CMS introduced the DEO on 1 November 2021. This is in line with the Guide (section 55013), which states that CMS may move a case to Collect and Pay and a DEO may be introduced where there is evidence that a parent is unwilling to pay.

55.As we know from the background above, the DEO amount was unaffordable for Mr A, and in December 2021 the DEO was cancelled and the CMS and Mr A reached an agreement regarding payments.

56.Mrs A spoke with the CMS on Mr A’s behalf several times in January 2024, and she tells us she is unhappy that CMS committed to call them back but did not do so. We agree that this is not in line with DWP’s ‘Customer Charter’ commitment to ‘do what we say we will do’.

57.Following conversations with Mrs A, the CMS apologised and offered a consolatory payment of £50 in recognition of the distress caused by the misleading information it had given and delays to callbacks.

58.The ICE report considered what CMS had done to put things right. It concluded that the CMS had had made a ‘suitable offer for redress’ regarding poor communication. However, the ICE explained that in its view the ‘misleading information’ that had been provided to Mr A was ‘more significant’, particularly as the matter had gone on to Tribunal when it is possible this could have been avoided if CMS had taken more prompt action, as we have recognised above.

59.In recognition of this, the ICE report explained that the CMS had gone on to offer further consolatory payments. The consolatory payment offered by the CMS to Mr A now totalled £300 and the ICE report said it felt this figure was reasonable. We also understand the CMS has refunded the overpaid maintenance, following the Tribunal’s decision that Ms B was not entitled to maintenance from a certain date.

60.Our understanding is that Mr A did not accept the payment of £300 for distress. Mr and Mrs A described to us that they felt the sum offered by the CMS did not adequately reflect the distress their family had experienced. We have thought about this carefully in considering whether CMS has done enough to put things right.

61.The CMS, which is an agency of the DWP, uses the DWP’s ‘Financial redress guide’ when deciding whether a financial remedy is appropriate. Where there has been an example of a service failing, or maladministration, it may be appropriate to offer a financial remedy.

62.The ‘Financial redress guide’ describes CMS’s approach to consolatory payments in sections 5.9 to 5.11 and it is outlined as follows: ‘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.

5.10. In deciding whether to award a consolatory payment and if so, how much, the special payment officer must have regard to the guiding principles detailed in section 4 of this document.

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.’

63.We have considered the above and also reviewed our ‘Severity of Injustice’ scale, which is set out in our ‘Guidance on Financial Remedy’. This scale helps us to determine what is an appropriate level of financial remedy and includes taking into consideration the financial amount already offered by the organisation in question.

64.We can see a special payment of £300 is within the £50 to £500 range the ‘Financial redress guide’ recommends and within the range of payments our scale recommends for distress caused over a relatively short period.

65.In our view, the failure to provide clear and accurate information to Mr A created an impact of frustration and distress that we consider to be at Level 2 on our scale. With this in mind and having considered the steps CMS has taken to put things right we can see the financial remedy and apology already given are proportionate and in line with both the DWP and our own guidelines. We therefore considered why Mr A does not feel this is enough to put things right.

66.Mr A told us that he does not believe the £300 and apology recognises the impact these events have had on him and his family. He says the CMS’s actions have had an impact on his finances and have affected his mental health.

67.We appreciate Mr A’s remains very frustrated, particularly in relation to the information he has received regarding his maintenance payments. Having thought about the evidence available, we have not seen any indication of financial loss, given that the maintenance payments have been refunded by the CMS already.

68.We have not seen any evidence of other financial loss or difficulties that, on the balance of probabilities, we might say were caused by the CMS errors we have identified.

69.We know that this period has been very stressful for Mr A and have listened to what he told us about the emotional impact caused by CMS’s mistakes. He has not shared with us any evidence of an impact on his mental health that leads us to conclude on the balance of probabilities that any further distress was due to CMS’s error rather than any other factors, including the distress involved in having to challenge the claim made by his ex-partner.

70.With this in mind, we have not seen anything to indicate the CMS needs to take further steps to put right a greater impact than it has already identified and that it has acted in line with applicable guidance and standards in reaching a view on appropriate remedy in this case.

71.If Mr A is in possession of any outstanding evidence or information regarding possible false statements or false declarations by Ms B, he may wish to explore that further by contacting the CMS directly. Alternatively, he may wish to seek independent legal advice to consider if there is a legal case for further reimbursement of maintenance from Ms B.

72.We are not in a position to offer any legal advice about this and would strongly recommend Mr A contacts a solicitor to explore this option, if he wishes to do so.

73.Having thought carefully about the above, we will take no further action in relation to Mr A’s complaint, as although it made some mistakes, we can see it has taken appropriate action to put things right. We know he continues to feel frustrated by these events, so we hope that we have clearly explained how we reached our decision in this case.

1.We have carefully considered Mr A’s complaint about the Child Maintenance Service (CMS). We can see from his correspondence with the CMS and with us that he is unhappy with the responses he has received so far and believes he has not received a fair outcome to his concerns. We were sorry to hear these events have caused him such frustration.

2.Having considered the evidence available to us, and the standards and guidance that set out how the CMS should carry out its work, we have decided to take no further action. This is because with regards to some aspects of the complaint we cannot see any indications of maladministration by the CMS. Where we can see some indications of service failings, we can see that the CMS has already taken steps to put things right.

3.The complaints we receive give us valuable insight into the organisations we investigate, so we would like to thank Mr A for sharing his experiences with us. It is important to acknowledge that where we have not identified service failings in relation to the concerns Mr A raised, or where we can see it has already taken steps to put things right, it does not detract from his experience, nor the distress he feels.

4.We appreciate Mr A feels strongly about the complaint, and our statement below sets out the reasons for our decision.