Home > Changing CSA Decisions > Judicial Review: Decision Exceeded The Power of the CSA/CMS?

Judicial Review: Decision Exceeded The Power of the CSA/CMS?

By: Lorna Elliott LLB (hons), Barrister - Updated: 5 Jul 2018 |
 
Judicial Review Child Support Challenge

Judicial Review is a legal process by which it is possible to challenge decisions of all public bodies, including the Child Support Agency and the Child Maintenance Service. Judicial review is in effect a means by which a decision is examined by the Administrative Court (High Court) in order to see whether the public body made a decision that it did not have the power to make, or the way that the decision was made was wrong.

When the CSA/CMS makes a ‘wrong’ decision, this could happen in several ways. The person making the decision could have failed to have proper regard for an important issue, or alternatively put too much emphasis on a matter that was not of particular importance.

In other words, if the way the decision was made was outrageous, nonsensical, or did not apply logic to the extent that ‘no sensible person could have arrived at it’ then this decision could be capable of being reviewed. Decisions can also be challenged on the basis of procedural unfairness.

Purpose of Judicial Review

Judicial review is not an appeals process, in that it does not challenge the outcome of the decision, but rather the way it was made. Once the application for judicial review has been lodged, the court has various powers available to it. It can set aside the CSA’s or CMS's decision, as well as being able to order the original decision maker to reconsider, or give directions in relation to that decision. The Administrative court also has the power to award damages, but this will only be applicable in situations in which the claimant can prove demonstrable loss. (I.e. that they have actually lost out as a result of the decision.)

Procedure

In the event that a decision is capable of judicial review, it is vital that you seek the advice of a specialist lawyer as early as possible. This is for three reasons:
  • There are strict time limits on lodging an application in the administrative court. Failure to lodge proceedings in time, and indeed if there is any kind of delay (even if the application is within time) this may prejudice your claim and the court could strike out your case.
  • Under the Civil Procedure Rules (CPR) judicial review proceedings are subject to a strict pre-action protocol, which must be followed before a claim is lodged at the High Court.
  • There must be no alternative solution to the decision other than judicial review. This means that all other avenues must have been exhausted before you resort to this legal process. IF the decision you are seeking to challenge can be appealed to a tribunal or child support commissioner, then this would be the appropriate method of challenge rather than by way of judicial review.

Challenging Benefits Decisions

There are some CSA/CMS decisions that depend on JobCentre Plus. If the non-resident parent receives income based JSA, income related support allowance or income support, then the amount of child support is fixed and it will not be possible to challenge this amount. This is the case even though the non-resident parent may have other income. However, in these circumstances you can raise the issue with the CSA/CMS, who report it to JobCentre Plus for investigation. It will then be up to JobCentre Plus to report back to the CSA/CMS with its findings. In some circumstances, you may be able to judicially review the JobCentre Plus decision.

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Under the new CMS system my final salary is calculated using 100% of my taxable income including company car and fuel thus adding £15,000 to my income. This additional sum is not a benefit and I already pay tax on the vehicle as part of my deductions yet the new system calculates the company car as part of my salary which I don't receive. The effect of this means my payments for two children has change from £500 to £750. How can this be fair as I have no option but to have the company car to do my job. So basically I'm being screwed by the government for having a company car which is of no financial benefit whatsoever.
Beast - 28-Apr-18 @ 7:47 AM
AKP - Your Question:
I have been separated from my partner of 15 years for just over a year now, we have four children from the relationship who live with her. At the beginning of our relationship, she received considerable amount of money in inheritance that was used to buy our family house (she is the sole owner) and as far as I know, remaining money has been kept by her in an offshore Trust that provides her significant regular income that is more than what I earn. One of the major contentions in our relationship was about number of children we should’ve had. She had on many occasions told me (and also to my family members) that she had enough money to have as many children as she wished and I was not to worry about taking care of them financially. Barring few short gaps in employment during our 15 years of relationship, I have always been in employment and spent all my earnings for the family’s everyday expenses so at the time of separation, I found myself with absolutely nothing while she has the house (with appreciated value) and most of her money. In fact, I have some debt from the period when I was not in employment, I am making regular monthly payments to clear this.My partner didn’t claim any child maintenance since we separated but has made the claim through CMS recently, immediately after learning that I was dating someone else. It is evident that she is making the claim as retaliatory measure rather than her financial needs to raise children. CMS’s calculation of what I should pay her is solely based on my current income but it doesn’t take into consideration all the issues above. If I have to start paying her the calculated child maintenance amount, I will bea) Unable to continue relationship with my current partner because I don’t have enough money to provide for a family homeb) Unable to see my children as regularly as I do now because it will be impossible for me to manage it financially. I visit them once every week and spend considerable amount of money on these visits (both on the commute and on children)I am wondering if this situation qualifies for a judicial review of CMS’s decision. Any help will be very much appreciated.

Our Response:
Regardless of the resident parent's financial status, the non-resident parent is still considered responsible by law to help pay to support their children's day-to-day needs. What you choose to spend on your children outside this remit is up to you. You may be able to apply for a variation from the CMS calculated amount for the likes of travel if you have to commute, please see link here . I'm afraid there is no room for movement, as every non-resident parent is calculated on a equal basis with regards to paying a percentage of their income.
ChildSupportLaws - 16-Feb-18 @ 3:30 PM
I have been separated from my partner of 15 years for just over a year now, we have four children from the relationship who live with her. At the beginning of our relationship, she received considerable amount of money in inheritance that was used to buy our family house (she is the sole owner) and as far as I know, remaining money has been kept by her in an offshore Trust that provides her significant regular income that is more than what I earn. One of the major contentions in our relationship was about number of children we should’ve had. She had on many occasions told me (and also to my family members) that she had enough money to have as many children as she wished and I was not to worry about taking care of them financially. Barring few short gaps in employment during our 15 years of relationship, I have always been in employment and spent all my earnings for the family’s everyday expenses so at the time of separation, I found myself with absolutely nothing while she has the house (with appreciated value) and most of her money. In fact, I have some debt from the period when I was not in employment, I am making regular monthly payments to clear this. My partner didn’t claim any child maintenance since we separated but has made the claim through CMS recently, immediately after learning that I was dating someone else. It is evident that she is making the claim as retaliatory measure rather than her financial needs to raise children. CMS’s calculation of what I should pay her is solely based on my current income but it doesn’t take into consideration all the issues above. If I have to start paying her the calculated child maintenance amount, I will be a) Unable to continue relationship with my current partner because I don’t have enough money to provide for a family home b) Unable to see my children as regularly as I do now because it will be impossible for me to manage it financially. I visit them once every week and spend considerable amount of money on these visits (both on the commute and on children) I am wondering if this situation qualifies for a judicial review of CMS’s decision. Any help will be very much appreciated.
AKP - 9-Feb-18 @ 10:35 AM
Kpajie - Your Question:
I have written a letter of complaint to the Client Services Manager at Child Maintenance Service (CMS)clearly asking for communication to me to be in writing. However, I keep on getting phone calls when I am at school, driving or sleeping, from CMS asking me to call back.My question is 'Is CMS restricted from issuing letters to address customer complaints?' Kindly offer some advice.

Our Response:
I'm afraid we cannot answer this question, as we have no knowledge of its workings. You would have to approach the CMS directly.
ChildSupportLaws - 15-Dec-15 @ 9:44 AM
I have written a letter of complaint to the Client Services Manager at Child Maintenance Service (CMS)clearly asking for communication to me to be in writing. However, I keep on getting phone calls when I am at school, driving or sleeping, from CMS asking me to call back. My question is 'Is CMS restricted from issuing letters to address customer complaints?' Kindly offer some advice.
Kpajie - 12-Dec-15 @ 11:04 AM
Kpajie - Your Question:
I need advice on the refusal of the Child Maintenance Service to place me on Nil payment based on the fact that I am a full time student. I have supplied them with all the evidence needed to prove my status as a student but they insist, over the phone, refusing to write to me, that I have to show a P45 that I have stopped work or provide my pay slips to show that I have reduced income up to 25%. I have written to them twice and they have not replied but called me on the phone an left a voice message to call them.The last time I was a student, the CSA adjudged me as not being liable to pay child maintenance. Please help!

Our Response:
If you are unhappy with the way you have been treated by the CMS, you can complain, see link here. I hope this helps.
ChildSupportLaws - 24-Nov-15 @ 11:49 AM
I need advice on the refusal of the Child Maintenance Service to place me on Nil payment based on the fact that I am a full time student. I have supplied them with all the evidence needed to prove my status as a student but they insist, over the phone, refusing to write to me, that I have to show a P45 that I have stopped work or provide my pay slips to show that I have reduced income up to 25%. I have written to them twice and they have not replied but called me on the phone an left a voice message to call them. The last time I was a student, the CSA adjudged me as not being liable to pay child maintenance. Please help!
Kpajie - 23-Nov-15 @ 3:59 PM
WHY NOT COLLECTIVE ACTION AGAINST CSA? I along with no doubt thousands of other resident and non-resident parents would be extremely interested in both how you went about this and the result of. In my research and despair have found no evidence of a class action against the csa or solicitors/MP's that have collectively taken up the cause. Why on earth is this? There are so many despairing parents that have had to deal with this inept organisation. The government itself has had to reorganise csa upon review that was not meeting its original aims. Where does that leave us and the legacy of their failure and neglect to protect the rights of the children and parents involved? Why are we not enmass dealing with this issue either legally, politically and through press etc?
TM - 20-Sep-14 @ 2:32 AM
I've just been granted permission for a Judicial Review of the Child Support Agency...anyone feel qualified to comment/advise? Or even represent me pro bono? I'm going to ask for them to cover my legal costs under the 'equality of arms' principle, but no idea how that will transpire. Seriously, I've got them by the short and curlies! Contact me for the full application and skeleton argument etc., :-)
Simon de Montfort - 17-Jul-14 @ 1:01 PM
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