Family Law PART 1 General Citation and commencement 1 These Regulations may be cited as the Child Support (Management of Payments and Arrears) Regulations (Northern Ireland) 2009 and shall come into operation on 25th January 2010. Interpretation 2 1 In these Regulations— “ the Order ” means the Child Support (Northern Ireland) Order 1991; “old scheme case” means a case in respect of which the provisions of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 have not been brought into operation in accordance with Article 3 of the Child Support, Pensions and Social Security ( 2000 Act ) (Commencement No. 9) Order (Northern Ireland) 2003 ; “a 2003 scheme case” means a case in respect of which the provisions of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 have been brought into operation in accordance with Article 3 of the Child Support, Pensions and Social Security (2000 Act) (Commencement No. 9) Order (Northern Ireland) 2003; “a 2012 scheme case” means a case in respect of which the provisions of the Child Maintenance (Northern Ireland) Act 2008 have been brought into operation in accordance with Article 2 of the Child Maintenance (2008 Act) (Commencement No. 10 and Transitional Provisions) Order (Northern Ireland) 2012, Article 2 of the Child Maintenance (2008 Act) (Commencement No. 11 and Transitional Provisions) Order (Northern Ireland) 2013 or Article 2 of the Child Maintenance (2008 Act) (Commencement No. 12 and Savings Provisions) Order (Northern Ireland) 2013; “the AIAMA Regulations ” means the Child Support (Arrears, Interest and Adjustment of Maintenance Assessments) Regulations (Northern Ireland) 1992 ; “Child Maintenance Service system” means the computer system used by the Child Maintenance Service which administers a 2012 scheme case or arrears from an old scheme case or 2003 scheme case; “Child Support Agency system” means the computer system used by the Child Maintenance Service which administers an old scheme case or 2003 scheme case; “the Decisions and Appeals Regulations ” means the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 ; “ electronic communication ” has the same meaning as in section 4(1) of the Electronic Communications Act (Northern Ireland) 2001; “non-resident parent” includes a person treated as a non-resident parent by virtue of regulations made under Article 39 of the Order ; “relevant person” means— a person with care; or a non-resident parent, in respect of whom a maintenance calculation is or has been in force. 2 In the application of these Regulations to an old scheme case, any reference to expressions in the Order (including “non-resident parent” and “maintenance calculation”), or to regulations made under the Order, are to be read with the necessary modifications. Use of electronic communications 2A Schedule 1 makes provision for the use of electronic communications. Arrears notices 3 1 This regulation applies to a case where— a the Department is arranging for the collection of child support maintenance under Article 29 of the Order ; and b the non-resident parent has failed to make one or more payments of child support maintenance due. 2 Where the Department is considering taking action with regard to a case falling within paragraph (1), it must serve a notice on the non-resident parent. 3 The notice must— a include the amount of all outstanding arrears of child support maintenance due and not paid; b set out in general terms the provisions as to arrears contained in this regulation and regulation 8 of the AIAMA Regulations ; and c request the non-resident parent make payment of all outstanding arrears. 4 Where a notice has been served under paragraph (2), no duty to serve a further notice under that paragraph arises in relation to further arrears unless those further arrears have arisen after an intervening continuous period of not less than 12 weeks during the course of which all payments of child support maintenance due from the non-resident parent have been paid on time in accordance with regulations made under Article 29 of the Order. Notice of consequences of failure to pay child support maintenance due 3A 1 This paragraph applies to a case where— a either— i there are arrangements for direct pay, or ii the Department is arranging for the collection of child support maintenance under Article 29 of the Order but there are no arrangements for enforcement under that Order; and b the non-resident parent has failed to make one or more payments of child support maintenance due. 2 Where paragraph (1) applies to a case, the Department may only start making arrangements for collection under Article 29 of the Order or arrangements for enforcement under that Order (or both) where the non-resident parent has been given a notice, within the preceding 12 month period, setting out that the Department will consider making such arrangements where there is a failure to make one or more payments of child support maintenance due. Attribution of payments 4 Where a maintenance calculation is or has been in force and there are arrears of child support maintenance, the Department may attribute any payment of child support maintenance made by a non-resident parent to child support maintenance due as it thinks fit. PART 2 Set Off Set off of liabilities to pay child support maintenance 5 1 The circumstance prescribed for the purposes of Article 38C(1)(a) of the Order, in which the Department may set off liabilities to pay child support maintenance, are set out in paragraph (2). 2 The Department may set off the liability to pay child support maintenance of one person (“A”) against the liability to pay child support maintenance of another person (“B”) where— a A is liable to pay child support maintenance under a maintenance calculation, whether that calculation is current or no longer in force, in relation to which B is the person with care; and b B is liable to pay child support maintenance under a maintenance calculation, whether that calculation is current or no longer in force, in relation to which A is the person with care. 3 There shall be no set off in relation to any amount which if paid could be retained under Article 38 of the Order . Set off of payments against child support maintenance liability 6 1 The circumstances prescribed for the purposes of Article 38C(1)(b) of the Order, in which the Department may set off a payment against a person’s liability to pay child support maintenance, are set out in paragraph (2). 2 The Department may set off a payment against a non-resident parent’s liability to pay child support maintenance where— a the payment falls within paragraph (3); and b the person with care agreed to the making of the payment. 3 A payment is of a prescribed description for the purposes of Article 38C(1)(b) of the Order if it was made by the non-resident parent in respect of— a a mortgage or loan taken out on the security of the property which is the qualifying child’s home where that mortgage or loan was taken out to facilitate the purchase of, or to pay for essential repairs or improvements to, that property; b rent on the property which is the qualifying child’s home; c mains-supplied gas, water or electricity charges at the qualifying child’s home; d rates payable by the person with care in relation to the qualifying child’s home; e essential repairs to the heating system in the qualifying child’s home; or f repairs which are essential to maintain the fabric of the qualifying child’s home. Application of set off 7 1 In setting off a person’s liability for child support maintenance under this Part, the Department may apply the amount to be set off to reduce any arrears of child support maintenance due under any current maintenance calculation, or any previous maintenance calculation made in respect of the same relevant persons. 2 Where there are no arrears of child support maintenance due, or an amount remains to be set off after the application of paragraph (1), the Department may adjust the amount payable in relation to the current maintenance calculation by such amount as it considers appropriate in all the circumstances of the case, having regard in particular to— a the circumstances of the relevant persons; and b the amount to be set off and the period over which it would be reasonable to adjust the amount payable to set off that amount. 3 An adjustment of the amount payable in relation to the current maintenance calculation under paragraph (2) may reduce the amount payable to nil. PART 3 Overpayments and Voluntary Payments Application of overpayments 8 1 Where for any reason, including the retrospective effect of a maintenance calculation, there has been an overpayment of child support maintenance, the Department may apply the amount overpaid to reduce any arrears of child support maintenance due under any previous maintenance calculation in respect of the same relevant persons. 2 Where there is no previous maintenance calculation, or an amount of the overpayment remains after the application of paragraph (1), the Department may adjust the amount payable in relation to the current maintenance calculation by such amount as it considers appropriate in all the circumstances of the case, having regard in particular to— a the circumstances of the relevant persons; and b the amount of the overpayment and the period over which it would be reasonable to adjust the amount payable for the overpayment to be rectified. 3 An adjustment of the amount payable in relation to the current maintenance calculation under paragraph (2) may reduce the amount payable to nil. Application of voluntary payments 9 1 Where there has been a voluntary payment, the Department may apply the amount of the voluntary payment to reduce any arrears of child support maintenance due under any previous maintenance calculation in respect of the same relevant persons. 2 Where there is no previous maintenance calculation, or an amount of the voluntary payment remains after the application of paragraph (1), the Department may adjust the amount payable in relation to the current maintenance calculation by such amount as it considers appropriate in all the circumstances of the case, having regard in particular to— a the circumstances of the relevant persons; and b the amount of the voluntary payment and the period over which it would be reasonable to adjust the amount payable for the voluntary payment to be taken into account. 3 An adjustment of the amount payable in relation to the current maintenance calculation under paragraph (2) may reduce the amount payable to nil. PART 4 Recovery from Estates Application and interpretation 10 1 This Part applies in relation to the estate of a person who dies on or after the day on which these Regulations come into operation. 2 In this Part, “child support maintenance” means child support maintenance for the collection of which the Department is authorised to make arrangements. Recovery of arrears from a deceased person’s estate 11 Arrears of child support maintenance for which a deceased person was liable immediately before death are a debt payable by the deceased’s executor or administrator out of the deceased’s estate to the Department. Appeals and other proceedings 12 1 The deceased’s executor or administrator has the same rights, subject to the same procedures and time limits, as the deceased person had immediately before death to institute, continue or withdraw any proceedings under the Order, whether by appeal or otherwise. 2 Regulation 34 of the Decisions and Appeals Regulations shall apply to a case where the non-resident parent is the deceased party to the proceedings as if for paragraphs (1) and (2) there were substituted the following paragraph— 1 In any proceedings, on the death of a non-resident parent, the Department must appoint the deceased’s executor or administrator to proceed with the appeal in place of the deceased, unless there is no such person in which circumstances it may appoint such person as it thinks fit to proceed with the appeal. . Disclosure of information 13 1 The Department may disclose information held for the purposes of the Order to the deceased’s executor or administrator where, in the opinion of the Department, such information is essential to enable the executor or administrator to administer the deceased’s estate, including, where necessary, to institute, continue or withdraw proceedings under the Order. 2 Any application for information under this regulation shall be made to the Department in writing setting out the reasons for the application. 3 Except where a person gives written permission to the Department that the information mentioned in sub-paragraphs (a) and (b) in relation to that person may be disclosed to other persons, any information disclosed under paragraph (1) must not contain— a the address of any person, except that of the recipient of the information in question and the office of the officer concerned who is exercising functions of the Department under the Order, or any other information the use of which could reasonably be expected to lead to any such person being located; b any other information the use of which could reasonably be expected to lead to any person, other than a party to the maintenance calculation, being identified. PART 4A Part Payment of Arrears in Full and Final Satisfaction Amounts owed to different persons to be treated separately 13A Where the arrears of child support maintenance for which a person is liable comprise different amounts that have accrued in respect of— a separate applications for a maintenance calculation; or b one application but would, if recovered, be payable to different persons, those amounts are to be treated as separate amounts of arrears for the purpose of exercising the power under Article 38D(1) of the Order. Written consent 13B 1 The Department may not exercise the power under Article 38D(1) of the Order without the written consent of the person with care with respect to whom the maintenance calculation was made unless the Department would be entitled to retain— a the whole of the arrears under Article 38(2) of the Order if it recovered them; or b part of the arrears under that Article if it recovered them, and the part of the arrears that the Department would not be entitled to retain is equal to or less than the payment accepted under Article 38D(1) of the Order. 2 Where the written consent of the person with care is required, the Department must make available such information and guidance as it thinks appropriate for the purpose of helping that person decide whether to give that consent. Agreement 13C 1 Where the Department proposes to exercise the power under Article 38D(1) of the Order, it must prepare a written agreement. 2 The agreement must— a name the non-resident parent and, where the consent of the person with care is required, name the person with care; b specify the amount of arrears to which the agreement relates and the period of liability to which those arrears relate; c state the amount that is agreed will be paid in satisfaction of those arrears; d state the method of payment and to whom payment will be made; and e state the day by which payment is to be made. 3 The Department must send the non-resident parent and, where applicable, the person with care a copy of the agreement. 4 The agreement does not take effect until— a the non-resident parent has agreed in writing to its terms; and b where applicable, the person with care has given written consent to the Department. Where payment is received 13D 1 Unless the non-resident parent fails to comply with the terms of the agreement the Department must not take action to recover any of the arrears to which the agreement relates. 2 Where the non-resident parent has made full payment in accordance with the agreement all remaining liability in respect of the arrears of child support maintenance to which the agreement relates is extinguished. 3 Where the non-resident parent fails to make any payment or only makes part payment or otherwise fails to adhere to the terms of the agreement, the non-resident parent remains liable to pay the full amount of any outstanding arrears to which the agreement relates and the Department may arrange to recover any of those outstanding arrears in accordance with the Order. 4 Nothing in these Regulations prevents the Department from entering into a new agreement with the non-resident parent in respect of any of the arrears to which the previous agreement relates provided that the new agreement complies with the requirements set out in regulation 13C. 5 Where the Department enters into a new agreement with the non-resident parent in respect of any of the arrears to which a previous agreement related, the previous agreement ceases to have effect on the coming into effect of that new agreement. PART 4B Write-Off of Arrears Amounts owed to different persons to be treated separately 13E Where the arrears of child support maintenance for which a person is liable comprise amounts that have accrued in respect of— a separate applications for a maintenance calculation; or b one application, but would, if recovered, be payable to different persons, those amounts are to be treated as separate amounts of arrears for the purpose of exercising the power under Article 38E(1) of the Order. Circumstances in which the Department may exercise the power in Article 38E of the Order 13F The circumstances of the case specified for the purposes of Article 38E(1)(a) of the Order are that— a the person with care has requested under Article 7(5) of the Order that the Department ceases to act in respect of the arrears; aa the person with care, has died; b the non-resident parent died before 25th January 2010 or there is no further action that can be taken with regard to recovery of the arrears from the non-resident parent’s estate under Part 4; c the arrears relate to liability for child support maintenance for any period in respect of which an interim maintenance assessment was in force between 5th April 1993 and 18th April 1995; ... d the non-resident parent has been informed by the Department that no further action would ever be taken to recover those arrears ; e the arrears relate to liability for child support maintenance accrued under an old or 2003 scheme case and the non-resident parent has failed to make any payments of child support maintenance within the 3 month period which precedes the date of the written notice sent by the Department under regulation 13G(1), or, where the arrears fall within regulations 13J(1)(a), (b) or (d), within the 3 month period which precedes the date of the decision of the Department under section 38E(1) of the Order; f the arrears relate to liability for child support maintenance accrued under an old or 2003 scheme case which has transferred from the Child Support Agency system to the Child Maintenance Service system and the non-resident parent has failed to make any payments of child support maintenance within the 3 month period which precedes the date of the written notice sent by the Department under regulation 13G(1), or, where the arrears fall within regulations 13J(2)(a) or (b), within the 3 month period which precedes the date of the decision of the Department under section 38E(1) of the Order; ... g the arrears relate to sequestrated debt in Scotland for an old, 2003 or 2012 scheme case once the trustee administering the sequestration has confirmed that the period of sequestration has ended : ... h the non-resident parent has been discharged under section 184 of the Bankruptcy (Scotland) Act 2016 (protected trust deed: discharge of debtor) from liability for the arrears ; i the arrears relate to liability for child support maintenance accrued under a 2012 scheme case where all of the following apply— i a maintenance calculation has ceased to have effect under one or more of the following provisions under the 1991 Order— aa Article 7(5) and (6) (a person who requested a maintenance calculation requests the Department to cease acting); bb Schedule 1, paragraph 16(1) (termination of calculations), ii the arrears are less than £7, and iii the non-resident parent has failed to make any payments within the 3 month period which precedes the date of the decision of the Department under Article 38E(1) of the 1991 Order (power to write off arrears); or j the arrears relate to liability for child maintenance accrued under a 2012 scheme case where all of the following apply— i the Department does not have jurisdiction to make a maintenance calculation under Article 41 of the 1991 Order, ii as a result of sub-paragraph (i), the Department has made a supersession decision under Article 19(1) of the 1991 Order, iii the arrears are less than £7, and iv the non-resident parent has failed to make any payments within the 3 month period which precedes the date of the decision of the Department under Article 38E(1) of the 1991 Order (power to write off arrears). Department required to give notice 13G 1 Where the Department is considering exercising its powers under Article 38E(1) of the Order, it must send written notice to the person with care and the non-resident parent. 1A Where the arrears fall within regulation 13(J)(1)(c) or (e) or (2)(c) the requirement under paragraph (1) to send written notice to the non-resident parent only applies where the Department receives written representations within the period of 60 days beginning with the date the notice is received by the person with care. 2 The requirement in paragraph (1) does not apply where the person in question cannot be traced or has died or the arrears fall within regulations 13F(g) , 13F(h) , 13F(i), 13F(j), 13J(1)(a), 13J(1)(b), 13J(1)(d), 13J(2)(a) or 13J(2)(b) . 3 The notice must— a specify the person with care in respect of whom liability in respect of arrears of child support maintenance has accrued; b specify the amount of the arrears except where the arrears fall within regulation 13J(1)(c) and the period of liability to which the arrears relate except where the arrears fall within regulation 13J(1)(c) or (e) or (2)(c) ; c state why it appears to the Department that it would be unfair or inappropriate to enforce liability in respect of the arrears; d subject to paragraph 3(da) advise the person that the person may make representations, within 30 days of receiving the notice, to the Department as to whether the liability in respect of the arrears should be extinguished; ... da where the arrears fall within regulation 13J(1)(c) or (e) or (2)(c)— i advise the person with care that they may make written representations as to whether the liability in respect of the arrears should be extinguished, and that any such representations must be sent by post , or electronic communication in accordance with Schedule 1, to the Department within the period of 60 days beginning with the date the notice is received; ii where a notice is sent to the non-resident parent in accordance with paragraph (1A), advise the non-resident parent that they may make written representations which must be sent by post , or electronic communication in accordance with Schedule 1, to the Department within the period of 21 days beginning with the date the notice is received; and e explain the effect of any decision to extinguish liability in respect of any arrears of child support maintenance under Article 38E(1) of the Order. 4 Subject to paragraph (4A), if no representations are received by the Department within 30 days of the notice being received by the person with care and the non-resident parent, the Department may make the decision to extinguish the arrears. 4A Where any of the conditions of write off mentioned in regulation 13J(1)(c) or (e) or (2)(c) apply, if no written representations are received by the Department within the period of 60 days beginning with the date the notice is received by the person with care, the Department may make the decision to extinguish the arrears. 5 For the purposes of this regulation, where the Department sends any written notice by ordinary post to a person’s last known or notified postal address that document is treated as having been received by that person on the second day following the day on which it is posted. 6 For the purposes of this regulation, where the Department sends any written notification by electronic communication to a person’s last known or notified address for electronic communication, that document is treated as having been received by that person at the end of the first day after the day it was sent. Department to take account of the parties’ views 13H Where the Department receives representations within the 30-day period referred to in regulation 13G(3)(d) or within the 60 day period referred to in regulation 13G(3)(da)(i) or within the 21 day period referred to in regulation 13G(3)(da)(ii) it must take account of those representations in making a decision under Article 38E(1) of the Order. Notification of decision to write off 13I 1 On making a decision under Article 38E(1) of the Order the Department must send written notification of that decision to the non-resident parent and the person with care. 2 The requirement in paragraph (1) does not apply where the person in question cannot be traced or has died or where the arrears fall within regulations 13F(i) or (j) or 13J(1)(a) or (2)(a) or where the arrears fall within regulation 13J(1)(c) or (e) or (2)(c) and the Department has not received written representations by post , or electronic communication in accordance with Schedule 1, from the person with care within the 60 day period referred to in regulation 13G(3)(da). Conditions of write off 13J 1 The arrears mentioned above are— a the arrears are less than £65; b the effective date of the maintenance assessment or maintenance calculation was on or before 1st November 2008 and the arrears are £1,000 or less; c the effective date of the maintenance assessment or maintenance calculation was on or before 1st November 2008 and the arrears are over £1,000; d the effective date of the maintenance calculation was after 1st November 2008 and the arrears are £500 or less; or e the effective date of the maintenance calculation was after 1st November 2008 and the arrears are over £500. 2 The arrears mentioned above are— a the arrears are less than £65; or b the arrears are £500 or less; or c the arrears are over £500. PART 5 Revocations and Savings Revocations 14 The statutory provisions specified in Schedule 2 are revoked to the extent specified there. Savings 15 1 Where before these Regulations come into operation, an adjustment has been made under regulation 10(1) of the AIAMA Regulations in an old scheme case, regulations 10(2) and (3) and 11 to 17 of those Regulations continue to apply to that case for the purposes of— a making and determining any appeal against the adjustment; b making and determining any application for a revision of the adjustment; c determining any application for a supersession made before these regulations come into operation. 2 Where before these Regulations come into operation, an adjustment has been made under regulation 10(1) or (3A) of the AIAMA Regulations in a case other than an old scheme case, regulation 30A of the Decisions and Appeals Regulations continues to apply to that case for the purposes of making and determining any appeal against the adjustment. Sealed with the Official Seal of the Department for Social Development on 15th December 2009 (L.S.) Anne McCleary A senior officer of the Department for Social Development