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Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 35065
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I'm not sure how much detail you need or if this link is private but I have had a demand for payment from the child maintenance service for my 18 year old son. His is in full time education for the next few months.
He divides his nights between staying at mine and staying at his mothers. He spends his days, apart from 12 hours when he is at college with me.
In Sept 2014 he was staying with me the majority of the time so I applied and got child benefit. My ex wife appealed and it went to a tribunal. The tribunal decision was that we had 50/50 care of our son. However, child benefit went to her as she was on other benefits.
Late last year the CMS got in touch. They wanted thousands of pounds back pay plus ongoing payments. I asked for a review. I has never notified in writing about the results of that review. I got a phone call in early January asking if I'd started paying yet! I explained the situation and followed it up with a letter asking for official notification of the review and explaining that a benefits agency tribunal has found that we had 50/50 care. I asked what appeal options I had. I heard nothing until yesterday when two letters arrived. The first stated I had missed payments since January and that I had 14 days to respond and the second saying I had failed to notify within 14 days and would be put onto collect and pay. I want to appeal further but cannot do so without written confirmation of the review results. WHERE DO I STAND PLEASE!!!!
HiThank you for your questionMy name is***** shall do my best to help you but I need some further information firstHave you paid Child maintenance in the past?
Customer: replied 2 years ago.
Hi Clare.My ex wife an I split in September 2011. Through the divorce process I paid maintenance and once the divorce was finalised there was an agreement to pay maintenance in line with the CMS guidelines. I paid this willingly. At the time Morgan, my youngest and I were not in contact. Around March 2014 Morgan got in contact and we began to rebuild our relationship. I continued to pay maintenance. In September 2014 I bought my house. Within a few weeks it became apparent that Morgan was spending more time with me than at his mothers. Whilst I was delighted with this it did mean that I was paying her maintenance but actually maintaining Morgan myself. I fed him, clothed him, transported him, paid his phone contract and his gym membership plus a multitude of other things. I informed my ex wife that as the situation had changed I would no longer be paying maintenance. Unsurprisingly, a few weeks later I received a demand for payment from the CMS.
I explained the situation and was told that if Morgan was spending more time with me than I should apply for child benefit, which I did successfully. Some months later I received a letter from the Child Benefits agency stating that my ex wife was objecting to my claiming child benefit. A tribunal was arranged and we both submitted written evidence. The findings of that tribunal were that we shared 50/50 care of Morgan. I have that in writing. However, the Child Benefit agency cannot split child benefit. As my ex wife was on a number of other state benefits she was awarded the child benefit as to not do so would have impacted on her other claims. Whilst I was a little unhappy that the finding stated I only had Morgan 50% of the time I felt that challenging it further would be a waste of time and at least she would not be able to claim maintenance.
Then, towards the end of last year CMS contacted me to say my ex wife was claiming child maintenance and wanted it backdated nearly 2 years. I called the CMS and explained the situation. I asked for a mandatory review and was told that I would be notified by post as to the outcome, this has never happened. in early January I was called by the CMS and told I had missed payments. I explained the situation but was told the review had been carried out some time ago and the position was unchanged. I was told to resubmit my argument in greater detail and I would be notified of the result. Again, that never happened. Instead I received 2 letters in the same post last Tuesday. The first said I had failed to make payments and would have 14 days to respond, the second said I had failed to respond in 14 days and would now move onto a collect and pay system.
So, there we are. What are my options from here please. Do I go to court to have the tribunal verdict recognised, or perhaps get the court to recognise that Morgan spends most of his time here or, is there another option?Thanks, ***** ***** forward to hearing from you.Jon.
When did the CMS FIRST make an assessment?
Customer: replied 2 years ago.
Hi, There was an assessment prior to me gaining the Child benefit, around december 2014 or January 15. The second assessment was December 2015
How much are the alleged arrears?
Customer: replied 2 years ago.
Hi Clare,Sorry but shift work sometimes delays my response.CMS state I've missed payments from December to date totalling £716.46. Then there is the arrears claimed and the demand for future payments, all in total is around £5000.Thanks,Jon.
That is fine.What period are the arrears meant to relate to?
Customer: replied 2 years ago.
The payment of £716.48, which is what they're currently demanding is from December 2015 to now. The total runs from December 2014 through to September 2016 which is the september after Morgan finishes college.Thanks
So the ONLY arrears are the £716?
Customer: replied 2 years ago.
Currently yes but they estimate I should have been paying from Dec 2014 and will finish in Sept 2016. My understanding is that they will continue to charge me until the full 5 grand is recovered which at that rate will leave me paying for the next two years or so. Thats long after Morgan has left college and joined the RAF. He'll be nearly 21 by the time I'm finished and won't have lived with either parent for years.
Why do you specifically think that they will back date it further?
Customer: replied 2 years ago.
Because that was the demand that arrived in December.
What was the exact wording?
Customer: replied 2 years ago.
Hi Clare,So, the letter that arrived in December states that it is my annual review. It states that from November 2015 I MUST pay £54.78 per week to support Morgan that from November 2015 for one year I Must pay a total of £2,865.78. further on it then states there is a payment plan but this includes another £2,343.12 from the previous year. The letter goes on to threaten taking payment directly from my wages.I abviously disagreed with the contents of this letter and asked for a mandatory reconsideration to which I never received a reply.Hope that helps.Jon
Did you ask in writing or on the phone?
Customer: replied 2 years ago.
On the phone unfortunately
Customer: replied 2 years ago.
I had written to then explains the tribunal findings etc prior to requesting a mandatory review.
Again just for clarity was the letter that you received in December the first letter that you had ever had?
Customer: replied 2 years ago.
Hi Clare,
Thanks for sticking with me on this.The December letter was the second one in this claim. Perhaps the best thing I can do is write a timeline -Sept 2011 Separation, Maintenance paid on an reduced basis as my ex wife was still in the marital home.
June 2014 Divorce finalised, Maintenance paid as per the settlement which was along CMS guidelines.
Sept 2014 I buy a house, Morgan begins to spend more and more time with me. I start noting the time spent.
Nov/Dec 2014 Morgan is living with me with some nights at his mothers. I inform her that under the terms of the divorce I will no longer be paying maintenance. I subsequently received a CMS letter stating I owed Maintenance. I contacted the CMS by phone and explained the situation. I was advised that if Morgan was living with me I should claim Child Benefit. I applied for and was successful in claiming Child Benefit. I contacted the CMS by phone and informed them of this. They stated that the case was now closed.
June 2015 I received a letter from the Child Benefits office stating that my ex wife was attempting to claim Child Benefit. As a result a tribunal would be held. I was invited to submit written evidence to that tribunal which I did.
July 2015 I am notified by HM Revenue and Customs that the findings are as follows -"We accept that you satisfy the rules for entitlement to Child Benefit. However, when two people claim Child Benefit for the same child, we cannot award benefit to both of them in the same week"The notice goes on to state that my ex would in essence lose other benefits if she did not receive Child benefit so it was awarded to her despite the fact that we were equally entitled to it.Nov 2015 I received a letter from the CMS stating that my ex was claiming maintenance. I contacted the CMS by phone and explained the tribunal ruling. I was told to write a letter of explanation accompanied by the Tribunal notice and if things were as I said then the case would be closed.
Dec 2015 I received a call from The CMS saying I needed to pay. I asked for a mandatory review and was informed I would receive written notification of that review. I never have had that notification.
13 Jan 2016. I received a phone call from the CMS stating that I now needed to pay (both going forward and retrospectively). I asked about the mandatory review and was told the CMS position hadn't changed. I asked what what my next form of appeal was and was told that if I didn't pay then the amount would be taken directly out of my wages. I spent an awfully long time explaining the situation and the history leading upto it. I was told to write another letter explaining all that I had said in full and I would be informed of any change in the decision.1 March 2016 I received 2 letters in the same post. The first said I had failed to pay since Nov 2015, my current arrears were £716 and that I had 14 days to notify the CMS of any payments made of I would be put on pay and collect. The second said I had failed to notify the CMS within the 14 days and that I would now be put on pay and collect.Hope that all makes sense!Morgan had agreed to attend court to give evidence as to where he spends his time and who funds him.I look forward to hearing from you.Jionathan
Customer: replied 2 years ago.
Hi Clare,
I was wondering if you have any update. I'm concerned that my time to take action is short.
My apologies for the delay.It would appear that the CMS is blessed with all the same problems as the CSA which whilst no surprise is nonetheless disappointing.What you need to do is to both file a written appeal AND seek a reassessment.ALWAYS deal with this in writing - never on the phoneYou come under the newest rules and they are quite clear - if the care is shared 50/50 then no maintenance is payable ask if you need further detailsClare
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.
Hello Clare, Thanks very much for that. I've cut and pasted my letter to the CMS below for your interest. I'll let you know how I get along. If I do get to the position of needing to retain legal representation would you be willing or interested in taking the case on?Thanks,Jonathan.10/03/2016 27 Deansleigh, Lincoln,
Ref – 121004646370 Lincolnshire, LN1 3QB.
F.A.O. - Client Services Manager
Dear Sir or Madame,
I note with great disappointment the receipt of two letters from yourselves dated the 26th of February. The first letter incorrectly stated that I have missed maintenance payments since last November and that I had fourteen days to notify yourselves if payments had been made. The second stated the fourteen days had elapsed and that I would now be put onto a collect and pay service.
I can only assume that my letter of the 12th of January has been ignored deliberately. In that letter I requested written confirmation of the results of the mandatory reconsideration requested in December 2015. The Child Maintenance Service has never provided me with that confirmation and as the current system is structured I am unable to progress further appeals and complaints without it.
I maintain that the demand for payment is erroneous at least and that I have previously satisfied H.M. Revenue and Customs at tribunal that my son Morgan is cared for at a minimum on a 50/50 basis.
Your second letter of the 26th of February states that unless I forward banking details I may face up to fourteen days in prison. I will not be threatened in this manner. It is through the Child Maintenance services neglect that this matter has not been settled. Please refrain from further threats. I am more than willing to deal with this matter on a civilised footing if only your office would comply with its own statutory requirements.
Yet again I request written confirmation of how the referral decision was reached and what evidence was taken into consideration. Without that notification you are deliberately frustrating my ability to proceed.
If, as I suspect, your next move is to attempt to put a deductions from earnings order in place I would respectfully ***** ***** that I have a right of reply at any such hearing. I would therefor need to be given reasonable notice of such a hearing to be able to engage a solicitor, prepare and attend.
On the subject of engaging a solicitor I have sought legal advice prior to composing this response. That advice is to repeat my reasonable request for the results of the mandatory review. In addition the advice is to request a further assessment based upon the information I have provided so far, including that encompassed in my letter of the 12th of January. I would be able to provide further information as required.
I feel it is only fair to inform you that should further legal advice and the formal engagement of a solicitor be required I will seek recovery of those costs from your office. Despite the Child Maintenance service stating that most issues can be sorted out without engaging a solicitor I have found this not to be the case
I will attach an addendum after my signature showing a timeline of events leading up to this point which may be of assistance to you.
In summary then I request action on the following -
1 – Please provide written proof that a mandatory review actually took place, the results of that review and evidence of how that decision was reached.
2 – Please consider this letter a request for a further review based upon my letter of the 12th of January. This was sent in compliance with the request of Heather, my case officer.
3 – Please consider this letter a formal complaint in respect of the Child Maintenance Service and it's neglect or refusal to date to comply with the requirement to notify me in writing of the results of the mandatory review.
4 – I would respectfully ***** ***** all correspondence is by letter as I no longer have any confidence in the integrity of those from your office making requests or giving advice over the telephone.
Again, I maintain that Morgan spends the vast majority of his time with me and that I provide financially for him. To force payment would be to Morgans' detriment which is contrary to the purpose of Child Maintenance.
Yours Sincerely