Consultation outcome

Child maintenance: Powers of entry and information consultation

Updated 26 March 2019

Introduction

1. The Child Maintenance Service (CMS) was introduced in 2012. The reformed service is designed to be more cost-effective and overcome many of the problems associated with the Child Support Agency (CSA).

2. The reforms included a new IT system and based the calculation of child maintenance liability on information about the non-resident parent’s income from HM Revenue and Customs (HMRC). In this consultation, non-resident parent refers to the parent who pays maintenance to the receiving parent and with whom the child lives least of the time.

3. The CMS has a range of powers to obtain information necessary to ensure child maintenance liabilities can be accurately calculated and, where necessary, enforced. This consultation seeks views on changes to 2 particular aspects of these powers; qualifying a CMS inspector’s ability to enter private property and widening of the current list of organisations with a legal obligation to provide information following a request by the CMS.

4. The Child Support Information Regulations 2008 sections 3-6 place a duty upon individuals and organisations to provide information, if required by the Secretary of State for Work and Pensions (or the Department for Communities in Northern Ireland), to enable:

• the non-resident parent to be identified or traced (where necessary);
• the amount of child maintenance payable by the non-resident parent to be calculated; or
• an amount of arrears to be recovered from the non-resident parent

5. Where information is not provided by individuals or organisations as required under the Regulations, section 15 of the Child Support Act 1991 or Article 7 of the Child Support (Northern Ireland) Order 1991 allows for an inspector, appointed by the Secretary of State or the Department for Communities in Northern Ireland, to obtain it by inspecting certain premises where this information may be held.

6. This consultation sets out our proposals for:

• the addition of a safeguard to the powers in section 15 of the Child Support Act 1991
• expanding the list of those required to comply with requests for information, under section 4 of the Child Support Information Regulations 2008

7. Our aim is to simplify the gathering of information and evidence process and enforcement action, by reducing the need for visits to premises where information is held, whilst providing safeguards for the public where it is necessary for an inspector to visit premises to obtain information.

Who this consultation is aimed at

8. The consultation is open to private, public and voluntary sector organisations, as well as clients of both the CSA and CMS schemes and members of the general public.

Purpose of the consultation

9. This consultation seeks your views on proposals for the addition of a safeguard to the powers of entry to premises in section 15 of the Child Support Act 1991 (‘the Act’). The Protection of Freedoms Act 2012 required all government departments to review their powers of entry. The Department of Work and Pensions (DWP) carried out a review of its Powers of Entry in November 2014. As DWP considered the powers of entry under section 15 of the Act to be essential powers, we are proposing to increase the level of protection for the public ensuring the department fully complies with the 2012 Act.

10. Additionally, we are proposing to expand the list of those required to comply with requests for information, under regulation 4 of the Child Support Information Regulations 2008 (‘the Regulations’), to include pension providers and mortgage lenders.

11. We would welcome your views regarding these proposals and in relation to the specific questions which are set out in this document.

Scope of consultation

12. The section on Powers of Entry applies to England, Wales and Scotland only. The section on the Information Strategy applies to England, Wales, Scotland and Northern Ireland.

Duration of the consultation

13. The consultation period begins on 14 January 2019 and runs until 11 February 2019.

How to respond to this consultation

14. Please send your consultation responses to policy.development@dwp.gsi.gov.uk, or:

Child Maintenance Policy team
Third Floor South Zone G
Quarry House
Quarry Hill
Leeds
LS2 7UA

When responding please state whether you are doing so as an individual or representing the views of an organisation. If you are responding on behalf of an organisation, please make it clear who the organisation represents, and where applicable, how the views of members were assembled.

Government response

15. We will aim to publish the government response to the consultation on GOV.UK, in line with the consultation principles. The report will summarise the responses.

Consultation principles

16. This consultation is being conducted in line with the revised Cabinet Office consultation principles published in January 2016. These principles give clear guidance to government departments on conducting consultations.

Feedback on the consultation process

17. We value your feedback on how well we consult. If you have any comments about the consultation process (as opposed to comments about the issues which are the subject of the consultation), including if you feel that the consultation does not adhere to the values expressed in the consultation principles or that the process could be improved, please address them to:

DWP Consultation Coordinator
2nd Floor
Caxton House
Tothill Street
London
SW1H 9NA

Email: caxtonhouse.legislation@dwp.gsi.gov.uk

Freedom of information

18. The information you send us may need to be passed to colleagues within the Department for Work and Pensions, published in a summary of responses received and referred to in the published consultation report.

19. All information contained in your response, including personal information, may be subject to publication or disclosure if requested under the Freedom of Information Act 2000. By providing personal information for the purposes of the public consultation exercise, it is understood that you consent to its disclosure and publication. If this is not the case, you should limit any personal information provided, or remove it completely. If you want the information in your response to the consultation to be kept confidential, you should explain why as part of your response, although we cannot guarantee to do this.

20. To find out more about the general principles of Freedom of Information and how it is applied within DWP, please contact the Central Freedom of Information Team by email freedom-of-information-request@dwp.gsi.gov.uk.

21. The Central Freedom of Information team cannot advise on specific consultation exercises, only on Freedom of Information issues. Read more information about the Freedom of Information Act.

Current powers of entry process

22. Where we have attempted to obtain information relevant to the calculation of child maintenance under the Regulations and have been unsuccessful, then the power of entry can be used. A duly appointed inspector has the power at any reasonable time either alone or accompanied to enter any premises which:

• are liable for inspection
• are reasonable for them to enter in order to acquire information for any purposes of the Act

23. The premises which are liable to inspection are those which are not used wholly as a dwelling house and which the inspector has reasonable grounds for suspecting are:

• premises at which a non-resident parent is or has been employed
• premises at which a non-resident parent carries out or has carried out a trade, profession, vocation or business
• premises where information is held by a person whom the investigator has reasonable grounds for suspecting has information about a non-resident parent which that person has acquired in the course of the person’s own trade, profession, vocation or business

24. While in the premises the inspector may make such search and inquiry as the inspector considers appropriate.

25. Inspectors will usually contact the occupier of the premises where the information is suspected to be held to arrange a visit at a mutually suitable date and time. Contact with the occupier may be by telephone or by letter. The occupier will also be advised of their duty to provide the required information or evidence to the investigator as set out in section 7 of the Regulations.

26. If the occupier advises that they will not permit the inspector entry to the premises, then the inspector will explain the occupier’s duty to make the information available. The inspector will also explain that failure to permit entry without good reason could result in the occupier being considered for criminal prosecution for intentionally delaying or obstructing an investigator exercising their powers of inspection.

27. Equally if the occupier initially agrees to the visit but when the visit takes place they then refuse the inspector access to the premises, without good reason, the warnings about possible criminal prosecution will be provided. Consideration will then be given to criminal prosecution proceedings for delaying or obstructing an investigator. In Scotland, a report would be made to the Crown Office and Procurator Fiscal Service so that they could consider whether or not to prosecute.

28. If found guilty by the courts of delaying, obstructing or not providing requested information to an investigator, the occupier may be liable to a fine up to, but not exceeding, £1,000.

Proposed changes to the powers of entry process (England, Wales and Scotland only)

29. The Protection of Freedoms Act 2012 required all government departments to review their statutory powers of entry. The aim of the review was to:

• reduce the number of powers
• where that was not possible, build in additional safeguards to protect the public

30. On reviewing CMS’s powers of entry we considered the use of inspectors to be a critical power in securing payment of maintenance, and that their powers of entry in section 15 of the Act should be retained. We therefore propose to add an additional safeguard of seeking a judicial warrant where initial access to premises is refused, or is expected to be refused from the outset.

31. The intention of this safeguard is to provide reassurance to members of the public by having independent judicial consideration.

32. An application for a judicial warrant will be considered where:

• the inspector considers that they will be refused access to premises from the outset
• on attending the premises to be inspected, and without good reason, they are refused entry

33. Our letters of intent to visit premises by an inspector will be amended to include an initial warning that if access is refused, we will consider seeking a judicial warrant. If following initial warning, the occupier refuses the inspector entry to the premises, without good reason, we will apply for a judicial warrant. If the warrant is made, then a further visit will be arranged.

34. Similarly, if a visit is made to the premises un-notified (for example because the inspector has been unable to contact the occupier) and the occupier refuses entry without good reason, the inspector will advise the occupier of their duty to provide the information required. They will also advise them that continued refusal of entry could result in an application to the court for a judicial warrant.

35. Where it is considered appropriate to make an application to the court, the inspector will complete the warrant application and submit it to the relevant court in England and Wales or the Sheriff in Scotland. The application will be scrutinised by the court or Sheriff to determine if a warrant for access is justified. The intention is for 3 forms of warrant to be signed and copies will be:

• retained by the court
• issued to the occupier
• issued to the Child Maintenance Service

36. On receipt of the warrant, further contact will be made with the occupier to confirm that:

• a warrant permitting access to their premises has been made
• arrange for a visit to be made as soon as possible

37. The warrant will:

• permit access to one set of premises for inspection only – separate warrants will be required if the information may be held in multiple properties
• expire one month after the date of issue – should the warrant expire before it can be used, a further application may be sought

38. The intention is that the warrant will be considered by the court or the Sheriff without a hearing. The investigator will contact the court to advise of the warrant application and request a date on which this should be submitted and considered.

39. It is not intended that any appeal rights will be included. If entry is refused we will seek a judicial warrant.

40. Further safeguards within this power of entry are that no one will be required to answer any question or give evidence which may incriminate themselves, their spouse, or civil partner.

41. If the occupier continues to refuse entry to the premises when the warrant has been granted without good reason, then the investigator will consider whether criminal prosecution is appropriate.

Your views

42. Our intention is to make the information gathering process more efficient, using the least intrusive power as possible. This will be for the benefit of those who have a duty to provide information and evidence. We would welcome views and observations on our proposals, particularly in relation to the following:

Question 1

Do you agree there are sufficient warnings within the proposed process to advise the occupier that a judicial warrant will be sought if access to the premises is refused without good reason? If not, please give your reasons.

Question 2

Do you agree that inspectors can seek a warrant if access to the premises is initially, or where the inspector considers it likely to be, refused? If not, please give your reasons.

Question 3

Do you agree that a one-month lifespan, from the day it is granted, of the judicial warrant is a reasonable period of time? If not, please give your reasons.

Question 4

Do you agree appeal rights are not required?

Information request powers current process

43. Our powers to request information are used when gathering information for the purpose of:

• tracing the non-resident parent
• calculating maintenance
• maintaining the case
• enforcing child maintenance arrears

44. Under regulation 4 of these powers there is a list of those persons who have a duty to provide the required information on request. Routinely such requests are made and responded to in writing.

45. Currently, mortgage lenders and occupational pension providers are not included in the list of persons or organisations who may be required to provide information about the non-resident parent under regulation 4.

Information is requested from these organisations on a voluntary basis

46. We currently require information from mortgage providers in cases where we are enforcing debt via a Charging Order or an Order For Sale. In the future, we will also require information from them for the new notional income from assets variation, in order to ascertain how much equity there is in a property.

47. Normally pension income information is provided through HMRC, although we require information from pension providers in instances where we suspect a variation to the calculation of income, due to the diversion of funds into a pension.

48. If information is not provided by the mortgage lender and/or pension provider in the first instance, it will be necessary for an inspector to visit the premises, using powers of entry, where the mortgage/pension information is held.

Information request powers proposal (England, Wales, Scotland and Northern Ireland)

49. Our proposal is to include both mortgage lenders and occupational pension providers within the list of persons who have a duty to provide information on request. This would enable us to reduce the time it takes to obtain information relevant to making child maintenance calculations, enabling us to ensure the receiving parent receives payments sooner.

50. Our intention is to make it more convenient for these organisations to provide any necessary information and evidence required by the Secretary of State or the Department for Communities in Northern Ireland, without the need for inspectors to attend their premises using the power of entry. Responses can be returned in writing either by post or by secure electronic means.

Your views

Question 5

Do you have any comments in relation to the inclusion of mortgage lenders and pension providers to the list of persons and organisations who have a duty to provide information to the Secretary of State?

Impact assessment

51. The annual estimate of costs on pension and mortgage providers who will now be required in law to give us information when we request it is around £16,000 per year. This will involve requests for either pension or mortgage information for less than 300 cases each year.

52. The proposed legislative changes will place a legal requirement on pension and mortgage providers to give us information when we request it. This will remove the need for inspectors to visit providers, with repeated visits in around half of cases when providers are not ready to provide information at the first visit. Also, returning responses which providers know are their legal responsibility are likely to be more efficient as responses can be returned in writing either by post or by electronic means, such as secure email.

53. In addition these legislative changes will represent a saving for the tax payer as representatives will no longer need to visit suppliers as they currently do in the majority of these cases. Savings to the taxpayer are estimated at £49,000 per year.

Note: This legal obligation on suppliers may result in them making these processes more efficient, reducing their costs from the £16,000 estimated. However, efficiency savings have not been assumed in our calculations.

Timing

54. The amendments will be made by affirmative instrument, which we are aiming to lay on 8 April 2019, coming into force by July 2019.

Please email responses by 11 February 2019: childmaintenance.policy@dwp.gsi.gov.uk