Home > Changing CSA Decisions > CMS Decisions That Are Wrong in Law

CMS Decisions That Are Wrong in Law

By: Lorna Elliott LLB (hons), Barrister - Updated: 21 Jul 2017 |
 
Decision Wrong Law Statute European

Decisions that are wrong in law can be made in numerous circumstances. In the first instance, the Child Maintenance Service can interpret the law wrongly. This may be that they have wrongly judged case law, a statute (Act of Parliament) or other regulation.

The CMS may also come to a decision that is not supported by any evidence, or could fail to give sufficient reasons for coming to a particular decision. In other cases, the CMS could fail to give proper regard to an issue in a case that is important, or alternatively take into account something that should not have been considered. If a decision has been made wrongly, it is capable of being superseded in these circumstances.

Procedure

Any party to a calculation can apply for supersession at any time. If the supersession relates to an application for a variation, or a supersession of a previously agreed variation, then the other parties involved may be consulted. On receiving an application for supersession, the CMS has one of four options available to it:

  • it can refuse to supersede on the basis that there are no grounds to do so
  • it can find that there are grounds for superseding the decision, but that the maintenance calculation should not be changed
  • it can change the maintenance calculation

Ultra Vires

Occasionally appeals tribunals and commissioners have found that the regulation that has been used to make a decision is not a regulation that has been made lawfully. In these situations, the regulation is said to be made ‘ultra vires.’ This translates as ‘beyond the scope of its powers.’

European Law

The courts, child support commissioners and tribunals, as well as the CMS itself and JobCentre Plus are all under a duty to follow the law. In some cases, however, the domestic law may not be entirely compatible with European law. Decisions that are made contrary to European legislation are wrong in law. In practice, the law of the European Court of Human Rights is more likely to be applicable in child support cases than European Union law. In the case of EU law relating to the equality of men and women regarding social security matters, commissioners have determined that this does not apply in the realm of child maintenance issues.

In terms of human rights law (ECHR), the domestic courts are required to interpret this in so far as is possible to do so. Courts, and child support commissioners, are not able to override the European law in order to ‘fit’ with the domestic law. If EU and UK law are found to be incompatible with one another, the courts can declare this incompatibility.

However it is important to note that EU law reigns supreme in these circumstances. The European Court of Human Rights provides a vehicle by which the courts and child support commissioners are able to override incompatible domestic law. In practice, circumstances in which this occurs are few and far between, and anyone seeking a potential challenge should seek specialist legal advice.

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Gladstone continued (ran out of virtual paper!!)..... The CSA have refused to take responsibility for the issues they have caused in accruing arrears on my behalf and seem to believe that it is ethically correct to pursue me for, and recover, at the maximum amount they possibly can. I have no issue with regards paying for my children and I have made reasonable offers to the CSA to pay back those arrears (that they caused) but the CSA has continued to ignore their responsiblity in creating those arrears or the ensuing detriment to my income which is severley tested each month. Having spoken to a Mr James Gilliver of the CSA over the past few days I will quote him. Mr Gilliver, when I challenged him on the issue that the ICE had made recommendations which the CSA had failed to abide by; he said "...the CSA does not need to pay any attention to the recommendations of the ICE". Maybe the CSA do not need to pay creedance to the ICE but I will be reffering the matter back to the Secretary of State for the DWP and asking what the actual purpose of the ICE is therefore and why the CSA belive that they are above and beyond any criticism and responsibility.....
Gladstone - 27-Dec-13 @ 4:38 PM
Gladstone continued (ran out of virtual paper!!)..... The CSA have refused to take responsibility for the issues they have caused in accruing arrears on my behalf and seem to believe that it is ethically correct to pursue me for, and recover, at the maximum amount they possibly can. I have no issue with regards paying for my children and I have made reasonable offers to the CSA to pay back those arrears (that they caused) but the CSA has continued to ignore their responsiblity in creating those arrears or the ensuing detriment to my income which is severley tested each month. Having spoken to a Mr James Gilliver of the CSA over the past few days I will quote him. Mr Gilliver, when I challenged him on the issue that the ICE had made recommendations which the CSA had failed to abide by; he said "...the CSA does not need to pay any attention to the recommendations of the ICE". Maybe the CSA do not need to pay creedance to the ICE but I will be reffering the matter back to the Secretary of State for the DWP and asking what the actual purpose of the ICE is therefore and why the CSA belive that they are above and beyond any criticism and responsibility.....
Gladstone - 27-Dec-13 @ 4:16 PM
Hello. I would like to share my experiences of the CSA and I will try to remain objective throughout. I have been paying the CSA for the last 12 years. The CSA have made continuous errors and, for example, they calimed in 2004 that I owed around 2500K that I had already paid. The CSA recognised their error eventually and wrote later that year to apologise. In 2012 they claimed there were missing payments from 2004... yes they tried to get the same amount of money from me yet again. The CSA failed to provide a correct assessment over the course of 2005-2007. I was never made aware of this until 2012. They said I had not paid the right amount; well of course I hadn't if they had never told me. I provided the CSA with the schedules they had sent me from that period of time and they corresponded with the amounts I had been asked to pay and the amount I had indeed paid. The CSA eventually realised that they had made this grave mistake and are desperatley trying to recover that 'extra money' with no regard to my current financial circumstances. From 2008 to 2010 the CSA failed to assess me for any payments despite my sending them a total of nine payslips over a three month period at the end of 2008 to 2009. I awaited their schedule which finally arrived in 2010. I started paying the arrears that had accumulated for this period along with regular payments. I was then notified in early 2012 that the CSA was pursuing me for thousands of pounds and wanted to impose a liability order which they succeeded in obtaining based on the period of missed payments in 2009 .... (yes; when they had not told me how much to pay in that time and in fact by this time I was paying those arrears back). All these matters were referred to the Independent Case Examiners office in 2012 along with some lesser issues. The ICE staff were very helpful. The ICE provided a 28 page report on the failings of the CSA over the last 12 years with regards to my account. The ICE summed up the failings of the CSA by stating that thre CSA had provided me with 'exceptionally poor service' and the ICE upheld about 90% of the complaints I had submitted. The CSA have proven difficult to correspond with and avoid answering certain questions about their behaviour. The CSA have acted with a blind faith that they are right and cannot be wrong. They make no ammends for their errors and have even sent correspondence to my Member of Parliament, which was proven to be incorrect, in an attempt to deflect responsibility for their failings. The CSA have refused to take responsibility for the issues they have caused in accruing arrears on my behalf and seem to believe that it is ethically correct to pursue me for, and recover, at the maximum amount they possibly can. I have no issue with regards paying for my children and I have made reasonable offers to the CSA to pay back those arrears (that they caused) but the CSA has continued to ignore their responsiblity in creating those a
Gladstone - 27-Dec-13 @ 4:10 PM
to Jeff02, sadly you will always get the same response and if you persue the matter beyond a certain point the CSA assume you are a bad father and don't want to pay which may lead to a Deduction of Earnings order (DEO) being imposed. I have been sent around several different branches of the CSA just to get an answer I even involved my MP to no avail. This is not a recommendation you should give up, never give up, ever! The Tribunal is a game as they are biased towards the CSA unless they have made a mistake in LAW with your case you will have a hard time proving your point. If you have already attended the Tribunal as you wrote in November 12 how did it go?
rogue101 - 27-Dec-13 @ 2:17 PM
i recently informed the csa i was back in work, i sent in payslips and advised them that there was overtime on one of them as i had some training to completeregarding my new job, and that it wasnt reflective of my regular income. approx 5weeks later i recieved my calculation and it was so high, as id been on there website and completed there calculator it was more than £10 week lower. I called them and informed them that they had included the overtime when i had already said it was unreflective. i was advised that they would look at it again and would call me if they needed any more information. 3 weeks later i called again told someonce would call me again, this happened again some weeks later again, ... i am still fighting 7 months later to get them to see they should never of used anun reflective payslip which has resulted in me having to now go to appeal can anyone advise if they have had the same ignorance....
jeff02 - 8-Nov-12 @ 3:35 PM
I applied for child maintenace recently, the CSA said that my child father should pay £5 per week. That is not enough to food. I ask the father to buy nappies and a buggy he said to ure the £5 to do that, £5 cant buy a thing. He is out of order what do i do, or what can i dn, PLEASE HELP..
babe - 5-Jun-12 @ 10:37 PM
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