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.

You might also like...
Share Your Story, Join the Discussion or Seek Advice..
[Add a Comment]
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
Hello If it's an obligation for the biological father to pay child payments Then why is full of punishment laws Why and how can it Deny a person an income to ability to have an income Project -work the short fall in income And the lack of common sense It was 0-100 £7 100-200 14 200 -850 ? Now it's 0-100 7 100-200 ? 200-3000 ? That's per week Cms has got its basic mathematics wrong If it's lawful to be stolen a living wage And 50% of a persons income as well as tax and nic Then how does the biological parent have a relation ship with their children Cms is a scam for free money 24% on every payment at a rate that the arresrs can never be paid back Cms is not about giving the nrp a negative impact on their quality of life Said the then was head of Cms in the houses of paraliment caroline nokes And areleading to family based arrangements Cms lacks common sense To put people out of employment because of their Greed to be denied fair process only to be put into servitude And to be exploited on the pretext of Children out of poverty Or provision of children's needs Children need both parents It took two people to make a baby And it takes a mum and a dad To educate our children It's not just about money If it can be used as another weapon by the pwc To deny contact Then it's a child abuse issue If the nrp has no income but still has contact with their children Then by Cms action our children are in poverty when the nrp is the pwc How can shared care happen if the children are being used as a product not a person By a service that cannot commit to its actions And every mission statement /contract Is controdictive to the previous one ? This is called repudiation UK contract law Services and products the consumer act If an offer was given and no other offer was given then only by a punishment Then it's fraud and dishonest UK has laws safeguards in place to protect us from abusive and exploitive practice Under common law Which is and all laws passed by the Queen totreat people as decent and ordinary person Human rights to be free from persecution Cms has denied children contact with their fathers over a percentage charge And Cms say this is a fair and balanced system A better system an easy system woukd be a token tax in wages Where it all goes into a pot and shared out Cms at this time It's a taxation on children 200-3000 per week If you earn over the 200 threshold by 50 after tax etc How can this be a fair system Nrp has no rights Nrp is being punished for being a low income worker Nrp can be denied an income for basics as well as contact with children If your a home owner on a low income and regular contact Well does not seem fair and balanced And it lacks common sense And either a complete review of this service or action to abolish it on the grounds it's an unfair law
Dave - 5-Feb-18 @ 9:29 AM
The Abacus - Your Question:
In 2012, my daughter was taken out of the count by my ex to her country of origin without my knowledge. I understand my ex has been claiming Child Benefit and Child Tax Credit for my daughter and her two other kids with another guy while abroad. I have never been able to see my daughter.Then in March 2017 from nowhere I received a letter from CMS. She was claiming child maintenance. I contacted CMS and told them that this woman was abroad and asked how she can be claiming child maintenance? They asked me for proof to that effect so I had to employ private investigators to find where my daughter attends school. Luckily the school's head teacher agreed to give me a letter confirming that my daughter attends school there. I forwarded this to CMS.Despite this evidence, they are demanding money from me. Their argument is the case has been passed onto fraud investigation and until they finalise their investigations I have to pay and they will refund me if later. I do not mind supporting my daughter even though I do not have access but surely CMS are wrong to be doing this? They forced me into a Collect & Pay arrangement so they are benefiting from the percentage they get. How can I have this looked into and corrected?

Our Response:
The fact your ex may have been claiming child tax credits and child benefit fraudulently has no bearing on her right to claim child maintenance from you, wherever she lives and regardless of whether you see your daughter or not. The fraud and her right to claim child maintenance are two completely separate issues. By law, every father is responsible for paying child maintenance to help support their children's day-to-day needs. The Reciprocal Enforcement of Maintenance Order (REMO) Unit helps to register and enforce child maintenance orders internationally, while CMS will attempt to enforce child maintenance nationally. It is in your best interests to continue to pay child maintenance while any investigations are continuing, otherwise you will accrue the arrears and could end up with a large bill. Also, child access and child maintenance are not dependent upon each other either. If you wish to apply for access to your daughter, you have to apply through the courts. However, you are still obliged to pay child maintenance whether access is granted or not. If you feel you are being treated unfairly, you would have to seek legal advice, but I can assure you, paying child maintenance is the responsibility of every non-resident parent countrywide. With regards to your ex's fraud this will be investigated and if she is found to have been making fraudulent claims she will be charged. I hope this helps clarify your question, if I have interpreted it correctly.
ChildSupportLaws - 25-Aug-17 @ 11:21 AM
In 2012, my daughter was taken out of the count by my ex to her country of origin without my knowledge. I understand my ex has been claiming Child Benefit and Child Tax Credit for my daughter and her two other kids with another guy while abroad. I have never been able to see my daughter. Then in March 2017 from nowhere I received a letter from CMS. She was claiming child maintenance. I contacted CMS and told them that this woman was abroad and asked how she can be claiming child maintenance? They asked me for proof to that effect so I had to employ private investigators to find where my daughter attends school. Luckily the school's head teacher agreed to give me a letter confirming that my daughter attends school there. I forwarded this to CMS. Despite this evidence, they are demanding money from me. Their argument is the case has been passed onto fraud investigation and until they finalise their investigations I have to pay and they will refund me if later. I do not mind supporting my daughter even though I do not have access but surely CMS are wrong to be doing this? They forced me into a Collect & Pay arrangement so they are benefiting from the percentage they get. How can I have this looked into and corrected?
The Abacus - 24-Aug-17 @ 11:24 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
Share Your Story, Join the Discussion or Seek Advice...
Title:
(never shown)
Firstname:
(never shown)
Surname:
(never shown)
Email:
(never shown)
Nickname:
(shown)
Comment:
Validate:
Enter word:
Latest Comments
Further Reading...
Our Most Popular...
Add to my Yahoo!
Add to Google
Stumble this
Add to Twitter
Add To Facebook
RSS feed
You should seek independent professional advice before acting upon any information on the ChildSupportLaws website. Please read our Disclaimer.