Hi, here's a good Friday afternoon query for you.

Absent parent pays CSA £340pm who subsequently pay my client. Client has had CSA overpayment decision. I don't normally deal with these and now I wish I hadn't. Here goes...

Client finished work on medical grounds back in January 07 and we had told her to make claims through CMS. Told her they'd look at IS but she'd have no entitlement as maintenance was too high. IS was awarded from 26.01.2007 whilst contribution conditions for Incapacity Benefit being considered.

24.02.2007 decision that IB payable from 02.02.2007 so IS recovered.

Case closed.

CSA now say overpayment of maintenance payments has arisen and gave a schedule of recovery up until May 2008 inc figures overpaid and those due. Amounts of recovery from future ongoing maintenance payments averaging £200 pm.

I appealed but CSA say it is not a decision it's just a change of circumstances and so why am I appealing. I told them their letter included clients appeal rights...They've now stopped recovery but have clawed back 2 months maintenance.

They say my client should never have had maintenance as she was awarded IS. My argument is she shouldn't have been awarded IS as maintenance was too high even disregarding £10.

I told them if that's the way they want to play it then IS was paid from 26.01.2007 with IB awarded back to 02.02.2007 after the decision of 24.02.2007 so in reality 7 days of IS so 7 days of maintenance ovepayment if this is what they insist. We've still been instructed to appeal.

I wrote to JCP to ask for clarification of the IS recovery from arrears of IB to prove the alleged maintenance o/p is only relevant for one week BUT JCP has thrown a spanner in the works by telling me IS has been recovered from 22.02.2007 to 29.03.2007 - I don't know where they get these dates from but I will be writing to them.

However I still think it's IS which has been overpaid (and HB/CTB) and not maintenance although client should accept the maintenance overpayment as it's probably just less than IS/HB/CTB for a week.

Surely client has a legal right to maintenance payments if absent parent is paying it to CSA for her??

Hi Sue,

Sorry, too much for Friday afternoon!

I am surprised too, but look at s.74A SSAA (page 93 of the current SS Leg, Vol III).

It says that where the CSA collects CSM and the PWC gets IS, the SoS can withhold all or part of the maintenance payment (except any applicable CM premium) and it doesn't count as income. I confess to utter ignorance about this until I looked it up and at first impression it smells like something of 'stealth tax' for the absent parent - ALL the maintenance he pays goes to government coffers. I can't believe I never knew that, it's incredible, and it sooo sucks! It doesn't even go to maintaining the CSA!

Anyway, in your case, the IS has been recovered by deducting it from the arrears of IB so I'm not so sure that this rule should be applied. I guess it would depend on the definition of 'entitled' in para (1)(a) - which talks in the present tense.

Another interesting point of note in the section is in para (1)(c) which talks about the maintenance payments REDUCING the amount of IS the claimant is entitled too. It doesn't suggest that it should appply where the amount of maintenance DISentitles the claimant.

The affect of both of these paras (is currently entitled to IS which is reduced by maintenance), to me (and bear in mind this is the first time I've seen this so I could be way off the mark here), is that this rule should be only be applied to an IS claimant whose maintenance payment (and any other assessable income, taken together) is low enough that an entitlement to IS remains. This would do away with the 'stealth tax' situation that lead to my earlier incredulity, and would almost certainly mean that the decision of the CSA in your client's case is wrong.

I hope that makes sense...? Maybe someone else has already come across this and can shed some more light on it.

Thanks for your input Tony.

I'd had a look at s74A SSAA which resulted in more frowning and beard stroking. I read it the same way as you but like you concur we might not be right.

I can only ask them what regs they've used.

BTW, nice word incredulity - sounds a bit more professional than my 'gobsmackedness'.

I think I've got it sussed. If it was just a IS claim then reading the regs it seems maintenance payments are disregarded for the purposes of calc IS according to Reg 55A and 60E IS Regs. It looks like payments are simply pocketed by the SoS.

In my client's case she was awarded IS from the beginning until her IB was processed which should have covered the whole period she was paid IS. Surely the SoS can't then keep this stolen maintenance.

"Gobsmackedness" LMAO - a fine word indeed! I might use it...

I've had a look at IS regs 55A and 60E and it they are definitely just the relevant provisions authorised by s.74A(2). Therefore they are not a generic maintenance disregard but can only be applied where s.74A has been applied to the payment of CSM.

I still believe in my earlier interpretation and, if it's right, the SoS doesn't keep the stolen maintenance. It occurred to me that if he did, not only would that give grounds to elevate gobsmackedness to the OED, but he would also be kind of a 'reverse Robbin(g) Hood' type character. Furthermore, our most esteemed and knowledgeable colleagues, Mark Rowland and Robin White, would have mentioned it in the commentary to s.74A.

I think this provision is the bit that simply allows the SoS to recover the costs of supporting a claimant via IS/IBJSA from the child support maintenance (i.e. CSA assessed maintenance). That was after all part of the policy intention in introducting the CSA in the first place - absent parent's should be responsible for supporting children, not the state (shame the CSA weren't so gobsmackedly (is that over-use?) heavy handed, judgemental, holier-than-thou, virtual state police - it might have worked a bit better).

It's like the CSA are saying that they should have applied s.74A at the time when your client was getting IS, and had they done so, they wouldn't have paid the maintenance. That's why they say the maintenance itself has been overpaid. But in retrospect that decision can't be right because:

1) the IS has been recovered from the arrears of IB which means the SoS has incurred no cost in IS;

2) I still believe that it can only be applied where there is a current award of IS/JSA that can only be REDUCED, as opposed to reduced to nil, by the maintenance.

Tony

i'm not 100% sure of this but i think sec 74A can only apply when the maintenance would reduce IS, not remove entitlement altogether. supposing it was £20 a week - instead of reducing the IS award and CSA paying the £20 received from AP, the SoS keeps the £20 and full IS is paid. i don't think it can mean anything more than that.

in this case (apart from the fact that the IS/IB recovery has been cocked up) the client didn't receive IS - it was paid then converted after the fact into IB, by recovering arrears. her income should be IB + full maintenance from AP. how a maintenance overpayment has been calculated is anyone's guess at this stage. has there been an alteration in father's maintenance assessment?

the only issue i can see is the 1 week IS was paid before IB started - why didn't she claim from January?

Jan (it is Jan isn't it?), in answer to your final question - she did. It was claimed at same time as IS. I've queried it and also why the late recovery from 22nd Feb.

I hope you're right as your view is exactly as I'd thought from the outset but when CSA kept maintaining I was wrong the more I looked into it the more I started to think this myself. I'm annoyed with me because I've allowed CSA to make me doubt myself.

As you can imagine the client is well peed. She's been questioning my advise that she should claim IB from when she finished work on medical grounds.

As I said at the beginning I normally don't do CSA and won't be in a rush to do it again.

(I sound like Trevor and Simon "we don't do duvets" for those of you who remember this stupid Saturday morning kids programme)

Tue 17-Jul-07 04:10 PM by Tony Bowman

that's what I said - only I didn't say it quite so succinctly and added a confusing rant and weird humour...

The different start dates for IS and IB might be down to different pay days for the different benefits...?

yeah Tony but confusing rants and weird humour are all part of the job surely and it makes us laugh. Reet then as we say ere up north -that's three of us in agreement.

Welfs 1 CSA 0