Variation Procedure

If you decide to make a variation application you will need to ask the CMS. You will start off with a telephone call to the CMS. If when you explain your ground it seems complex the CMS may well ask you to fill in a form. If the ground is pretty simple (for instance you know your ex is a Company Director and he is receiving dividends) then the CMS will probably take the details over the telephone and move on with that. Variations unfortunately do you have a habit of being “forgotten” and it is therefore important that you chase up the CMS regarding your variation application, especially if it is accepted by phone. Once the CMS starts off the variation procedure they will contact your ex who has the opportunity to put his side of the story and this is called the resolution phase.

If your ex does not respond then the CMS will consider the documentation on the basis of what they have from you and what they can obtain from asking further questions of the Inland Revenue. They will then make a decision as to whether to grant a variation or not. If you are unhappy with the result you can request a mandatory reconsideration within 28 days but if that to is turned down then your only alternative thereafter is to go to tribunal.

It is very important to realise that time limits are very strict on these matters, most elements of the process have a time limit of 28 days. The CMS and the Tribunals actively enforce the time limits and whilst we would never suggest that you leave matters until they are out of time, if you are in a position where you are out of time to appeal we may still be able to assist. In any event if you receive a decision that you are not happy with then we would very strongly suggest that you call us on 03456 588 683.

It should not surprise you to know that it is not only open to you to make a variation application, the non-resident parent can do so too in an attempt to lower the amount of child support he pays. In particular he can make the following applications:-

1. Contact costs. If there is a frequent and regular contact arrangement then the father can ask for his costs of contact to be taken into account which includes the cost of bus and rail tickets, fuel, taxi or airfares together with any tolls. In certain circumstances it can include hotel or accommodation costs.

2. Illness or disability of a child. If your ex has a child living with him who has a long-term illness or disability then he can apply for a departure on the basis of the costs associated with that.

3. Prior debts. Where your ex has ended up “lumbered” with debts that were incurred whilst the two of you were together and for the benefit of the two of you (or any children that were with the two of you at the time) an application can be made on this ground.

4. Boarding school fees. In the event that one of the children you are applying for attends boarding school and the father pays in respect of boarding school fees he can apply for a variation in relation to those costs.

5. Payments in respect of mortgages, loans or insurance policies. Here where you are living in a house with the child and your ex is paying the mortgage he can make an application for a variation in relation to the mortgage, loans or insurance policies connected with that property. The most important element of this is that the non-resident parent must have no legal or equitable interest in the property.

Your ex is able to make an application in respect of any one or all of these grounds and the Child Maintenance Service will assess the cost of each of these grounds to your ex. The total amount of that cost will then be deducted from his income and the child maintenance recalculated on the basis of the reduced income. This does not mean therefore that the entirety of these costs are deducted from the maintenance he pays to you, they are simply deducted from his income before his maintenance is calculated, so for instance say your ex has an income of £500 per week and he is able to claim £100 per week in relation to any or all of these costs then his maintenance would be calculated on the basis that he earns £400 per week and not £500 per week.

If you are notified of a variation application by the Child Maintenance Service you really should obtain legal advice, not only on the basis of how to defend them but to see whether or not you can make your own cross application, it may be the position that the father has a winning case in relation to the variation ground which from your point of view is practically un-defendable but you could regain the money lost by making your own cross application and it is even possible that the cross application could be worth more thereby resulting in an increase of child support rather than a decrease. It is very important that legal advice is taken on these points so call us on 03456 588 683.