Child Maintenance Service (CMS)

4. Mr E complains CMS did not use the correct income to calculate his child maintenance liability from June 2021 onwards.

5. Mr E also complains CMS delayed acting on information he gave it from March 2022 onwards when he started a new job. He considers this meant it should have recalculated his liability.

6. Mr E has told us CMS’s failure to recalculate his liability meant his arrears increased significantly. He explained this caused him financial hardship when he was paying back the arrears accrued. Mr E also told us this has affected his relationship with his child as his ex-wife believes he has been lying to avoid paying maintenance for his child. Mr E explained this caused him anxiety and depression. He told us this also led to other physical health problems.

7. Mr E would like CMS to recalculate his maintenance liability using the correct income. He would also like a financial remedy equal to the arrears his account accrued, and CMS to remove any service charges from his account.

8. The full background in this case covers many years and covers several different changes in Mr E’s child maintenance liability. We have not set out the full background to all the issues here. We have set out the relevant information that relates to the two issues we are considering in our decision.

9. In October 2017 Mr E’s former partner (Ms R) made a claim for maintenance in relation to one child they have together. When the case was created Mr E paid the amount CMS calculated his child maintenance to be.

10. Child maintenance is financial support that helps towards a child’s everyday living costs. For people who cannot make their own family-based arrangements, CMS can calculate how much maintenance the paying parent should pay to the receiving parent.

11. Nothing of note happened in relation to Mr E’s child maintenance liability until November 2020.

12. In November 2020 CMS placed Mr E on nil liability. This was because he had told CMS he was unemployed and was setting up a consultancy business. Nil liability means CMS would not expect Mr E to make any maintenance payments as he had no income.

13. Mr E remained on nil liability until June 2021 when CMS became aware that he was in receipt of Universal Credit (UC). CMS then told Mr E he should be paying £7 per week in maintenance. In July 2021 CMS noticed Mr E was no longer in receipt of benefits.

14. CMS did not then return Mr E to nil liability. It used his previous income and said Mr E should pay Ms R £638 a month.

15. Mr E then contacted CMS to dispute these income figures. He told it he was unemployed and had no income. He said his wife was supporting him so he could not make these payments.

16. CMS told Mr E its letter contained details of how it calculated his ongoing liability and what to do if he thought the decision was wrong. If Mr E believed the decision was wrong he could ask for a Mandatory Reconsideration (MR). An MR is the first stage of the statutory appeals process.

17. Between November 2021 and March 2022 CMS continued to contact Mr E in relation to the arrears he now owed. During this time, he continued to dispute the income figures it had used.

18. In March 2022 Mr E told CMS he was then employed again so his income would change and provided details of that.

19. Later that month Mr E confirmed he was still disputing the arrears he owed and was taking the matter to tribunal. CMS issued a new payment plan the same day as Mr E had agreed to pay £140 per week while waiting for the tribunal decision.

20. At this time CMS said Mr E owed £7004.95 in unpaid maintenance.

21. In August 2022 CMS looked again at the decision Mr E had appealed. It recorded that effective from 3 October 2021 Mr E should have been on nil liability. CMS wrote to Mr E informing him of its decision. It also told him as it had revised this decision his appeal would not proceed.

22. CMS told Mr E it now expected him to pay £13.77 a week. This was because although he had nil liability, it had recalculated his arrears to be £807.86. Following this decision Mr E contacted CMS and told it he disagreed with the arrears owed and he would be appealing this.

23. On 29 October CMS completed its annual review of Mr E’s account. The annual review confirmed CMS expected Mr E to pay nil maintenance for the next year.

24. Ms R requested an MR of this decision as she was aware Mr E was now working. Mr E provided CMS with information in relation to his current employment.

25. Mr E’s employer also confirmed he had been employed since February 2022.

26. In February 2023 CMS confirmed Mr E his maintenance payments had changed. At this time CMS expected him to pay £173.43 weekly. It confirmed after recalculating his income it had backdated the changes to 4 March 2022. This meant his maintenance arrears now stood at £8677.30.

27. On 2 March 2023 Mr E contacted CMS to dispute the arrears and income used to assess his maintenance. CMS raised an MR the next day. On 15 March CMS rejected Mr E’s MR request and advised him about how to appeal.

CMS did not use the correct income to calculate Mr E’s liability from June 2021 onwards.

31. The Parliamentary Commissioner Act 1967, section 5(2), says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.

32. Mr E complains about how CMS reached its decisions in relation to his maintenance liability from June 2021 onwards. Mr E has told us that when CMS confirmed he was no longer in receipt of benefits, rather than reverting him to the nil liability he had been on before, it wrongly calculated his income. Mr E told us this decision cannot be correct as CMS had previously recognised he had no income.

33. Any decisions CMS makes that affects a person’s liability to pay maintenance can be challenged through the statutory appeals process. This means if they believe CMS has made the wrong decision about how much maintenance they must pay, a person has a legal right to ask it to look at the decision again. The first stage of the appeals process is a MR.

34. We can see that Mr E did not raise an MR in relation to this initial change, although he later raised one when CMS rejected his request for a change of income. When CMS makes an MR decision, a decision notice is issued to inform the person of the outcome. That decision notice clearly sets out that if they disagree with the decision they can appeal to a tribunal.

35. Section 20 of the Child Support Act 1991 sets out that any person who is aggrieved by a decision of a child support officer may appeal to a child support tribunal against that decision. If the tribunal allows an appeal made under this section, it may give whatever directions it considers appropriate. The tribunal can substitute its own decision regarding maintenance liability or refer the matter back to the CMS with appropriate directions.

36. As the tribunal has discretion to give ‘whatever directions it considers appropriate’, if it found in Mr E’s favour it could instruct CMS to look at its decisions again. It could also consider instructing CMS to reduce the liability and recalculate Mr E’s income. A different decision about this is the main outcome he is looking to achieve.

37. Where someone has or had such a route, and where it is or was reasonable for them to pursue it, we cannot look further at those matters.

38. As Mr E had a legal route open to him to achieve the key outcomes he is looking for. As explained above, the tribunal is specifically set up to consider and achieve changes to child maintenance. An appeal to a tribunal is free and Mr E has not made us aware of any other barriers to him pursuing this at the time.

39. Although we know Mr E did not appeal the specific decision we are considering, he could have done so if he believed the decision was wrong. We are aware that Mr E did then appeal a subsequent decision not to change his income.

40. Mr E has shown that he was able to pursue the statutory appeals process and there were no financial barriers to doing so. As this is the case it would be reasonable for Mr E to have appealed the decision if he believed it was wrong.

41. We note that it would now be outside of the relevant time limit for an appeal but must explain that, as it would have been reasonable for Mr E to have appealed at that time, we remain unable to take further action.

42. We understand this was a stressful time for Mr E and he has told us these issues caused him anxiety and depression. Mr E has told us that he would like a financial remedy to put things right. We have thought about this carefully, as while a tribunal can achieve a change of child maintenance liability it does not provide remedies for distress.

43. Having done so, we can see that the distress Mr E describes comes from what he considers to be an incorrect decision in law. Only a tribunal can determine this. As such, we are not able to give a view on the emotional impact Mr E describes to us, nor therefore recommend a financial remedy for it. As such, we will take no further action.

44. We know that Mr E continues to feel frustrated and upset by these matters, so we hope we have clearly explained how we reached our decision in this case.

CMS delayed acting on information Mr E gave it from March 2022 onwards when he started a new job

45. Mr E told us CMS could not tell him why it did not update his income despite him telling it when he started a new job and had income again. He also told us that he agreed a payment plan with CMS and stuck to it and used this figure to budget for the year ahead.

46. CMS said there had been a number of different calculations in Mr E’s case. It also set out that most of the arrears Mr E owed was the result of a backdated change to his liability completed in February 2023. This related to his employment starting from March 2022.

47. Mr E told CMS about a change in his circumstances in March 2022. CMS did not act on this information until October, a wait of seven months.

48. We have found no published timescales for accepting evidence or making changes to an account following a parent providing information to CMS. However, CMS staff should adhere to the service standards set out in the ‘DWP customer charter’. The customer charter sets out that staff should: ‘Deal with your request the first time you contact us, or as soon as we can’. It is clear from the timescale involved that CMS staff did not act in line with the customer charter in this case and did not act as soon as it could.

49. In line with this, we consider waiting seven months amounts to a delay. This is an indication of maladministration.

50. Mr E told us these issues caused a negative impact on both his mental and physical health. He told us he became seriously anxious and depressed. He also explained this led to alcohol dependency which now affects his health.

51. Mr E also told us this affected him financially and affected his relationship with his daughter.

52. We can see this has been a difficult time for Mr E. We acknowledge the delay caused Mr E added anxiety as well as frustration. We are sorry to hear of the negative impact this has had on him.

53. We cannot say Mr E suffered any financial loss as the money he owed was arrears, so it was money he would always have owed once CMS recalculated his liability. We are not considering here if the calculations are correct or not, as this is not our role.

54. In recognition that the delay caused a higher level of arrears CMS offered Mr E a consolatory payment of £300. The DWP made this offer in line with its ‘Financial redress for maladministration’ guidance. This guidance sets out that CMS should offer consolatory payment when a customer has suffered injustice or hardship arising from maladministration.

The guidance sets out that these payments should usually be between £50 and £500

55. Mr E says these issues impacted his relationship with his daughter. We appreciate this has been a difficult time for him and his family and are sorry to hear that this relationship has suffered. We know it can be difficult circumstances when CMS become involved in cases of this kind. Personal circumstances can be difficult after the breakdown of a relationship, and where children are involved, this can make things more difficult for all parties.

56. As there are so many factors that could affect Mr E’s relationship with his daughter it would be extremely difficult to say how much of this may be because of the issues with CMS he has told us about. This is because we would never be able to say this is the only thing that could have an impact on the relationship Mr E has with his daughter.

57. To establish whether CMS has done enough, we reviewed its actions with our Principles for Remedy and Severity of Injustice Scale. Our principles state, ‘our underlying principle is to ensure that the public body restores the complainant to the position they would have been in if the maladministration or poor service had not occurred. If that is not possible, the public body should compensate them appropriately’.

58. Our severity of injustice scale sets out our view on the financial recommendations we think are both appropriate and proportionate for non-financial loss. An example is distress experienced by a complainant. In line with this, we believe Mr E is within level two of our severity of injustice scale.

59. A level two injustice will typically arise when what has gone wrong has had a relatively low impact on the person affected. This will often result in a degree of distress, inconvenience or minor pain. We would normally recommend a payment between £120 and £550 for this level of injustice.

60. We understand overall the impact of dealing with CMS on Mr E’s mental and physical health may have been higher. He told us this impact was due to his dealings with CMS over a number of years. Unfortunately dealing with CMS can be a stressful time, especially when it involves several appeals and changes to liability. We can see this would impact on a person’s mental health as Mr E has told us it has. We are not commenting here on the impact on Mr E of all his dealings with CMS, just the indicated delay.

61. After considering the impact of the delay we believe a financial remedy of £300 is appropriate and proportionate. As CMS has already offered Mr E £300, we think it has done enough to put right the impact to him.

62. We do appreciate Mr E feels this does not go far enough. We consider CMS’ actions to are in line with our Principles of Remedy. As such we will take no further action.

1. We have carefully considered Mr E’s complaint about the Child Maintenance Service (CMS). Mr E brought his complaint to us as he remains dissatisfied with how CMS dealt with his case. We understand Mr E feels strongly about this and are sorry to hear these issues caused him added stress and worry at a difficult time for him.

2. In relation to Mr E’s concern CMS incorrectly calculated his child maintenance liability, we consider he could take legal action on this matter by following the statutory appeals process. As this is the case, we cannot consider this part of his complaint any further.

3. In relation to Mr E’s complaint about CMS not acting on information he gave it, we have decided CMS has already done enough to put right the impact of these events. Following an investigation by the Independent Case Examiner (ICE) CMS apologised to Mr E and offered him a consolatory payment of £300. We fully explain below how we have reached our decision in Mr E’s case.