14. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. Having done so we have found CMS has already done enough to put right the impact of these events.
Enforcement Action
15. Mrs A complained since 2016 CMS has failed to take enforcement action of the arrears owed to her and secure regular maintenance payments from the paying parent.
16. ICE in its response to this issue upheld this issue as it found CMS did not take any action to collect or enforce ongoing maintenance payments between 9 May 2018 and 22 September 2020.
17. We have considered ‘Volume 6 – Collections and Enforcement (Chapters 49-95) Chapter 79: sanctions’ of CMS’s ‘Decision Makers Guide’. This explains that in England and Wales, there are three options available for CMS to pursue the Non-Resident Parent (NRP) through the magistrates’ court where they have failed to pay the outstanding liability order balance. These are known as sanctions.
18. Only one of these sanctions can be imposed on a paying parent at a time. Sanctions may be considered appropriate where it can be confirmed that the paying parent has the ability to pay but is unwilling to pay. The sanctions are disqualification from holding or obtaining a driving license, commitment to prison, disqualification from holding or obtaining a UK passport.
19. We have also considered DWP’s ‘Customer Charter,’ which says DWP, and its agencies (which includes CMS) will:
•‘do what we say we will do •try to understand your circumstances •follow processes correctly’
20. We can see since 14 January 2016 CMS took over the administration for the collection of the maintenance payments for Mrs A’s children from her ex-partner the PP. Prior to this the Child Support Agency (CSA) had collected the payments. When CMS took over we can see Mrs A was already owed unpaid maintenance of £4,776.08.
21. On 1 April 2016, CMS raised a collect and pay request and it changed the maintenance payments to this on 12 May 2016. On 18 June 2016 CMS attempted to trace a bank account for deduction action from the PP, but were unsuccessful. On 27 July 2016 it referred Mrs A’s case to bailiffs, but they were also unsuccessful.
22. We can see between 13 July and 15 December 2017, CMS imposed a series of Deduction from Earning (DEOs) on the PP’s employer. (A DEO is where CMS deduct the amount of child maintenance stated on the order from the employee’s net earnings or pension).
23. On 10 October CMS also referred the case to sanctions. On 30 April 2018 the PP was found guilty and sentenced to a six-week suspended sentence for two years on the condition that he paid £30.00 a week. These payments were towards the agency liability order. (a liability order is an order obtained by CMS to legally enforce payment of child maintenance).
24. Between 3 May 2018 and 23 December 2019, Mrs A received intermittent payments of varying amounts. On 7 January 2020, CMS wrote to the PP warning him they were applying to the court for his sentence to be imposed. CMS were then notified the PP was in receipt of benefits and therefore were unable to take further enforcement action. We can see between 10 February and 9 March 2020, the PP made intermittent payments. Between 16 March and 5 September 2020, the PP made payments in line with the sanctions court hearing.
25. We understand between May 2018 and September 2020, CMS took no action to attempt to collect the ongoing maintenance payments.
26. On 9 September 2020, CMS noted the PP had paid off the Agency Liability Order. Between 13 September 2020 and 7 March 2021, Mrs A continued to receive intermittent payments of varying amounts.
27. From 22 September 2020 CMS took action to pursue a Liability Order. A further liability order was granted on 2 February 2021. CMS referred the case to bailiffs again on 22 February 2021, who were unsuccessful.
28. We can see between 10 April 2021 and 19 March 2022, Mrs A received payments by a regular deduction order (RDO). (A RDO is a formal instruction to a PP’s bank to automatically deduct money at set intervals for the maintenance payments and/or arrears). CMS cancelled the RDO on 6 April 2022 as Mrs A was no longer receiving the payments.
29. On 17 April and 6 July 2022 CMS imposed a DEO. On 12 July 2022, £966.02 was forwarded to Mrs A. Between 18 August 2022 and 23 August 2023, Mrs A received monthly payments via DEO. On 17 August 2023, CMS were informed the PP had left his employer. It changed the payment method to a standing order. The PP did not make payments and on 10 October 2023, CMS again imposed an RDO. CMS cancelled this on 22 November 2023 as Mrs A was not receiving payment.
30. We appreciate Mrs A has not had regular payments as expected from the PP. We understand this has been ongoing since CMS took over the administration of her case. We also acknowledge this was likely to be the situation prior to CMS taking over, due to the arrears on the account. We recognise how frustrating it would have been for Mrs A and her children to not receive the payments they were entitled to. We are sorry to hear of the stress this has caused Mrs A and impact on her mental health.
31. From the evidence available we can see on several occasions CMS has attempted to secure the payments from the PP. CMS has taken action to do a collect and pay, refer the case to bailiffs on two occasions, apply for direct payment from the PPs employer, pursue a liability order, applied for a court order through a RDO to seek payment and sought court sanctions.
32. Despite CMS’s actions we can see Mrs A has not received the payments expected from the PP, through CMS since 2016. Albeit she has received some payments, these have been sporadic. We appreciate Mrs A’s frustration with not receiving regular payments. We consider CMS has attempted to take action to retrieve the payments, and it has sought court sanctions, in accordance with the decision makers guide. We can be satisfied CMS has attempted to take some enforcement action since 2016, to retrieve the payments and outstanding arrears.
33. That said we note between March 2018 and September 2020, CMS took no enforcement action or attempted to collect the payments. We note during this time Mrs A was not receiving the correct payments she should have. In accordance with the decision makers guide CMS could have considered further sanctions. We are also not assured it has acted in accordance with its customer charter of following the processes correctly. Based on this we consider there is a failing with the enforcement action CMS has taken during this period.
34. We will address the impact and what actions CMS has taken to put this right further below.
Mandatory Reconsideration
35. Mrs A complained in July 2023 CMS delayed in progressing her request to reconsider its reduction of the maintenance payments.
36. Mrs A says she questioned with CMS the review as her ex-partner was still with the same employer. She stated when someone at CMS looked on another system they noted he was earning £36,000. She says she asked CMS to backdate the payment, but it ignored this request.
37. ICE within its response identified that CMS did not provide Mrs A with her Mandatory reconsideration (MR) rights on two occasions (the decision dates of 16 February 2023 and 7 June 2023). ICE found CMS had apologised and made a consolatory payment of £75. ICE found this to be justified.
38. Volume 5 – Review and appeals (Chapters 42 to 48) Chapter 42: Mandatory reconsideration of CMS ‘Decision Makers Guide’ explains MR is a request for a decision to be reconsidered. It details this is the process that must be completed before the right to appeal to an independent tribunal accrues (ie before someone can appeal to the courts regarding a calculation decision).
39. We have also considered DWP’s ‘Customer Charter,’ which says DWP, and its agencies (which includes CMS) will:
•‘do what we say we will do •try to understand your circumstances •follow processes correctly’
40. We can see CMS completed its annual review on 16 February 2023. It notified Mrs A including her MR rights on 17 February 2023. Also on 16 February 2023, Mrs A raised a change to income request via the self-service portal. Following this CMS raised a change to income request, rather than a MR. On 20 February 2023, CMS notified Mrs A it had not received evidence of the change to circumstance, so could not change the maintenance payments at the time. We can see CMS did not give Mrs A her MR rights for this decision.
41. On 7 June 2023, Mrs A raised a further change to income request via the self-service portal. This is because she was unhappy CMS had previously rejected the change.
42. We can see on 12 July 2023, CMS decided the PP weekly liability was £84.91, based on his current income of £36,807.54. CMS based this from 7 June 2023. CMS did not provide Mrs A with her MR rights for this decision.
43. In July 2023 on several occasions Mrs A and her MP raised with CMS the disputed effective date for the decision (ie the date of 7 June 2023). On 20 September CMS raised an MR for the decision. On 9 October 2023, CMS sent Mrs A a MR decision notice, which explained it had not changed the effective date as the PP stated the date was correct. CMS signposted Mrs A to HMCTS if she did not agree with the decision. There is no evidence to indicate Mrs A appealed the decision.
44. We appreciate the problems Mrs A has faced with trying to retrieve payments from the PP through CMS. We recognise this has been a frustrating experience for her. We understand Mrs A was unhappy with CMS’s annual review in 2023.
45. In accordance with the decision makers guide, if one of the parties involved is unhappy with the decision of CMS’s calculation, they can request it reconsiders it. This is a Mandatory reconsideration. Therefore, CMS should provide the MR rights to the relevant parties when it made a decision calculation.
46. From the evidence available we can see CMS did not provide Mrs A with her MR rights for the decision from 20 February 2023. There is also no evidence CMS investigated the PP income at that time.
47. CMS further reviewed the decision in July 2023, but did not provide Mrs A with her MR rights until 20 September 2023. We consider there was a delay in CMS doing this. Based on this, we are not assured CMS has acted in accordance with its customer charter of doing what it says it will do or following the correct process. Accordingly, we consider there is a failing by CMS with this issue.
48. We appreciate the delay in CMS providing Mrs A her MR rights would have caused stress and frustration. We will address the impact of this and what actions CMS has taken to put this right further below.
49. In relation to the appeal of the decision calculation, Mrs A had a right to appeal through the courts following the MR decision by CMS on 9 October 2023. Mrs A would have needed to pursue this if she disagreed with CMS’s final decision about the calculation. There is no indication this decision was appealed. Accordingly, this is not something we can consider.
Complaint handling
50. Mrs A complained CMS failed to respond to her complaint letter she sent in November 2023.
51. ICE within its findings upheld this element of Mrs A’s complaint. It found there was a delay in CMS responding to Mrs A’s complaint from November 2023.
52. We have considered the government website, which sets out the Department for Work and Pensions (DWP) complaints procedure. CMS provides its service under the DWP. Therefore, its complaints procedure would be relevant.
53. Within this procedure it details a member of its complaints team will contact the aggrieved to discuss the complaint in more detail. It says CMS will investigate the complaint and aim to resolve it within 15 working days. If the investigation will take longer than 15 days, the complaints resolution manager will keep the aggrieved updated and inform them when they can expect a response. We can see from the ICE response it confirmed CMS would aim to respond within 30 days if the case is complex.
54. We have also considered our principles for remedy, which says
55. ‘Public bodies should behave helpfully, dealing with people promptly, within reasonable timescales and within any published time limits. They should tell people if things take longer than the public body has stated, or than people can reasonably expect them to take.’
56. We can see Mrs A has been unhappy for several years with CMS’s actions and raised several concerns at various times.
57. On 14 July 2023 CMS wrote to Mrs A’s MP regarding complaints she had raised about delays in receiving payments, the arrears schedule and the PP’s assessed income. On 26 July 2023 Mrs A sent a further complaint letter to CMS, within this she disagreed with the effective date for the MR from 7 June 2023. We note CMS did not respond to Mrs A about this. It reissued the previous letter it had sent to Mrs A’s MP from 14 July.
58. We can see on 29 November 2023; Mrs A sent a further complaint letter to CMS. Within this she complained about the enforcement action CMS had taken, the effective date of the MR and that CMS had not responded to her previous complaint.
59. Mrs A and her MP contacted CMS on 19 December 2023 and 19 January 2024, chasing a response to the complaint.
60. On 5 February 2024, CMS provided its response to Mrs A’s complaint. Within this CMS awarded Mrs A, a consolatory payment of £75 as an apology in recognition of the errors it had made. Within its response CMS referred Mrs A to ICE.
61. We can see Mrs A has been unhappy with CMS’s actions and service for several years. We appreciate it would have been very frustrating for her to continue to have contact CMS about her concerns.
62. From the evidence available we can see CMS did not respond to Mrs A’s complaint from 26 July 2023. Also, it took CMS 45 days to respond to Mrs A’s complaint from November 2023. This response time is not in accordance with CMS’s own timescale. Based on this we are satisfied CMS has not acted in line with its own guidance. Furthermore, we do not consider it has followed the standard we would expect in accordance with our principles of remedy of informing people if things take long.
63. Therefore, we consider there is a failing with CMS in relation to this issue.
64. We will address the impact and what actions CMS has taken to put this right further below.
Impact and remedies
65. We have identified failings with CMS’s actions in relation to the lack of enforcement action it took, not providing Mrs A with her MR rights and how it dealt with her complaints.
66. We consider because of these it would have caused distress and frustration to Mrs A.
67. In this instance we must separate CMS’s delays and failings, from the issues caused by the behaviour and actions of the PP. This is because CMS is not accountable, nor can it control the behaviour or actions of the PP, and its powers of enforcement are limited to them being able to take only certain actions here.
68. On the balance of probability, even if there had not been failings by CMS, and it had taken further enforcement action or provided Mrs A with her MR rights when it should have, we cannot say Mrs A’s financial position would have been any different. From the evidence we have seen we think it is highly unlikely the PP would have consistently met his obligation’s or that the arrears would have been significantly better.
69. We can see that the PP’s payments have been sporadic at best. Enforcement actions have had little or no significant impact on his payments, or the arrears owed. Even when CMS took action through the court and it imposed a suspended prison sentence on the PP, they still failed to provide regular payments. It would appear he goes to great lengths to avoid CMS being able to take any enforcement action.
70. We would not be able to say that Mrs A’s position would be any different if CMS had not caused any delays or gave poor service. This means that, even on balance, we cannot say there was a financial loss as a result of the service CMS gave Mrs A. We understand this may seem unfair and it is not our intention to try and minimise the impact this matter has had on Mrs A and her children.
71. That said, we can see how CMS’s poor service and avoidable delays will have added to Mrs A’s existing considerable stress and upset cause by the PP’s behaviour. Also, with how it handled Mrs A’s complaint. We therefore consider this is what ICE have asked CMS to compensate her for.
72. CMS had already acknowledged the delays in providing Mrs A with her MR rights and made a £75 consolatory payment. On the basis of ICE’s investigation, CMS has acknowledged its errors, agreed to apologise and offered a further consolatory payment of £250.
73. CMS’ guidance ‘Financial redress for maladministration’ sets out the instances CMS should make payments where there has been maladministration on its part. Any payments made come from public funds and are typically small.
74. Section 5.11 explains that such payments usually range between £50 and £500.
75. ICE’s recommended payment of £250, plus the previous £75 falls within this range. It is therefore reasonable to say it has acted in accordance with the applicable guidance. We think what it did recommend reflected the frustration and upset the delays caused Mrs A.
76. We can see that the £325 offered now puts right the frustration of CMS delays caused between 2018 and 2023, in line with DWP’s own guidance and our ‘Guidance on Financial Remedy’. With this in mind, we will take no further action.
77. The evidence available to us indicates that CMS made a mistake in its handling of Mrs A’s case but has already taken appropriate steps to put things right. As such, we will take no further action. We understand Mrs A remains frustrated by CMS’s handling of her case, and we hope this statement clearly explains how we reached our decision.