How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34276
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
13262538
Type Your Law Question Here...
Clare is online now

I'm a businessman and my CSA payments are being assessed at

Customer Question

Good Morning, I'm a businessman and my CSA payments are being assessed at the moment by HM Courts and Tribunal Services ( I should say that this is for the second time due to a successful appeal on a previous ruling). Currently I earn very little but have assets. The panel at HM Courts and Tribunal appear to be going down the route of calculating my assets with a view to assessing 10% of their value as income. I have been told under current CSA law this is no longer legal, however, as the alleged arrears in my case goes back to late November 2011 the Tribunal are entitled to use the CSA law from that time. I understand there are three versions of CSA law with different dates! I'm also told that under the law they are using I'm not entitle to relief on losses made by my business but under the current law I would be. I think I need help in figuring all this out?
Regards
Brian
Submitted: 1 year ago.
Category: Law
Expert:  Nicola-mod replied 1 year ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 1 year ago.
Hi Nicola, I realise this is very complicated and will require specialist knowledge of the CSA. If you think you can find someone to help I don't mind waiting. If you can't no worries please close the question and issue a refund
Regards
Brian
Expert:  Clare replied 1 year ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

When did you first become involved with the CSA

How much are the arrears

Customer: replied 1 year ago.
Hi Clare and thanks for looking at my question.
The CSA first became involved in November 2011 when I was forced to leave my family home following two violent attracts upon me from my ex wife.
At that time an arrangement was in place for child support at Glasgow Sheriff Court which I was honouring.
The CSA made an assessment but my ex wife appealed on the grounds of "lifestyle inconsistent with income". I appealed the assessment and it is now at HM courts and Tribunal for the second time. (An assessment on my income was made last year but upon a successful appeal the CSA admitted to numerous errors in law and this was thrown out).
The amount of arrears will depend upon what the new tribunal decide is my income. However, they are trying to assess my income in 2012 and make an award based on that from 28/11/2011 to the present day, however, this could be an amount of tens of thousands of pounds.
I am paying an amount to the CSA currently based on their payments calculator on the CMS website commensurate with my current salary.
Please let me know if you require anything further to answer my initial question
Regards
Brian
Expert:  Clare replied 1 year ago.

What is the source of your actual income (then and now?

Customer: replied 1 year ago.
I get a salary from my business and have been assessed on the profits of another business although my drawings are a lot less than the profits (the CSA do not take account of business losses only the gross income of the business)
RegardsBrian
Expert:  Clare replied 1 year ago.

Are you the only director of both companies?

Customer: replied 1 year ago.
Hi ClareI'm actually involved in three small businesses; two are limited companies which have other share holders and directors. The other is a partnership with my ex wife (she has resigned as a partner since February 2016).RegardsBrian
Expert:  Clare replied 1 year ago.

Which business is making losses?

Customer: replied 1 year ago.
The partnership made a profit to year ending 2012 but has made losses since
Expert:  Clare replied 1 year ago.

What is the nature of the business?

Customer: replied 1 year ago.
Property letting. It owns 6 flats and one commercial property
Expert:  Clare replied 1 year ago.

How is it making a loss?

Customer: replied 1 year ago.
The business simply is spending more than it makes
Expert:  Clare replied 1 year ago.

I am sorry to push - but on what?

Customer: replied 1 year ago.
Mortgages, repairs, business rates etc
Expert:  Clare replied 1 year ago.

Nothing else?

Customer: replied 1 year ago.
No
Expert:  Clare replied 1 year ago.

But the CSA do not accept that?

Customer: replied 1 year ago.
Hi Clare, at the moment the tribunal has been adjourned and I'm awaiting new directions coming out. They said they will be asking for more information. The said that no losses are allowed to be taken into account (there haven't differentiated between losses and costs). The also look to be building a case around assets I own with a view to assessing 10% of the value of the asset as my income.
In the leaflet produced by the CSA it says that business assets cannot be assessed. It also says the cost of operating a business can be allowed. This is in conflict with what the tribunal appear to be doing.
My question was intended to find out if you knew the versions of CSA law (I have been told at the tribunal there are 3 covering different dates) and whether they can use a law from an earlier time despite the fact that the law has now changed?
Expert:  Clare replied 1 year ago.

Yes that is correct

Customer: replied 1 year ago.
just to be clear the CSA can use an old law dating back to when the claim started despite the fact that the law has now been changed?
Expert:  Clare replied 1 year ago.

Bluntly yes.

As you are aware there have been two major changes to the system of calculation since the Original legislation so that there are now (technically) three different calculations still in play - CS1, CS2 and the latest one CS3.

Despite various plans there was never any process of moving cases from CS1 to CS2 - so cases started before 2003 remain with assessments made under the original system.

There is however a planned roll out of CS1 and eventually CS2 cases being closed and transferred to the new system - but it is slow and working from the oldest cases - so your assessment remains under the CS2 rules.

This means that the "Assets capable of producing an income" argument can still be used.

With regard to the business the normal running costs of the business will of course be deducted from the income of the business - but you cannot count losses from one business/year against income from another business/year - and if you deliberately leave capital in the business then that can be counted

Customer: replied 1 year ago.
Thanks Clare, at least that gives me some idea of what I'm up against. I looked again at the CSA leaflet "How child maintenance is worked out" (the copy I have is from 2012 however, I looked online (CSA website) and the version there dated 2013 doesn't appear to have changed much) which tells me that the running costs of a business are allowed. It also tells me that they cannot make an assessment on assets used for my business. I did at the time have approximately £99,000 in savings ( I later invested this in my business in May 2013) they are I think going to use the £99,000 and make an assessment on that, do you know what percentage they can assess as income?
Can you please tell me when CS3 came into operation and where I am able to obtain copies of these rules?
The other issue is that they will make an assessment based on my income in 2012 and use that to calculate arrears going back five years. Surely as my income varied over each year they should make an assessment for each year and work out the arrears on that, or would I have to appeal again?
I would also think that as part of the arrears accrued during CS3's time that should be used for any arrears during that time?
Regards
Brian
Expert:  Clare replied 1 year ago.

The proper business costs are indeed allowed -BUT any money that you leave or put in your business that is not needed for business expenditure CAN be counted and given a notional income of 8% per annum which will then be subject to the assessment

If you can prove that the earlier years were less profitable then you must do so - but it is for you to prove.

I am sorry you have misunderstood.

You remain on CS2 unless and until you are rolled into the compulsory closure process - so your arrears come under CS2

You can find all the rules on the website here

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/220379/cmec-maintenance-calculation-regulations-2012-technical-consultation.pdf

Clare, Solicitor
Category: Law
Satisfied Customers: 34276
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks Clare, I suppose right now I'll have to wait and see what they come back with. HM Courts has adjourned and will issue new directions to both myself and PWC.
I've gone through the regulations and found a few things which maybe useful.
Am I able to contact you again if I need to?
Expert:  Clare replied 1 year ago.

You can always ask for me at any time!

Customer: replied 1 year ago.
Hello ClareI wish to get your advice on the issues I'm facing with up coming tribunalMy Tribunal is being heard under CSA law for 2000 which has a huge advantage to my ex as she is able to claim "lifestyle variation" and have the tribunal look at my businesses and assets in an attempt to 'build' an income which does not exist.
As we know under 2012 law this option is not available and I feel my case should be tried under the current 2012 law. Do I have a case for saying to the tribunal that I'm being discriminated against as the 2000 law is financially advantageous to my ex wife? I notice there was a case several years ago when an NRP took the CSA to the European Court of Human rights as he was due to pay £100 per month less under the new rules.
The first claim my ex made to the CSA was in December 2011
Please let me know if I have to pay first as this is a new question?
Regards
Brian
Expert:  Clare replied 1 year ago.

No I am afraid that this is not possible - and that case was not successful

You can however enquire at what stage your case is scheduled to be moved

Customer: replied 1 year ago.
Thanks Clare