Child Maintenance Service (CMS)

5. Mr O complains that CMS failed to take appropriate action from May 2019 when he made it aware that his child, R, was no longer living with his ex-partner (Ms D), to whom he was paying child maintenance.

6. Mr O says that as a result:

• He was making child maintenance payments which were not going to R, and he was unable to afford separate payments to R’s grandparents who were caring for him. He says this led to R missing out on opportunities and experiences the extra money may have provided.

• Ms D, who was addicted to drugs and alcohol, was receiving child maintenance monies which she was using to fund her addictions. He says CMS’ actions contributed to allowing her to continue using drugs and alcohol which ultimately contributed to her death in 2022.

• He says all of this caused him significant distress which ultimately led to him having a mental breakdown.

7. Mr O seeks financial compensation and service improvements.

8. Parents are legally responsible for paying towards the costs of caring for their children. When parents separate, children can sometimes live with one parent primarily and that parent can often provide day to day care for the child. This parent is considered to be the parent with care.

9. The other parent is usually considered to be the non-resident parent. They must contribute towards the costs of caring for the child living with the parent with care. If parents cannot agree on how much the non-resident parent will contribute, CMS can get involved.

10. CMS will then calculate how much the non-resident parent should pay the other. This will usually be on the basis that payments will be made directly to the parent with care. If the non-resident parent does not pay in line with what CMS has directed, CMS can begin collecting payments on behalf of the non-resident parent, this is called collect and pay. CMS can also introduce a Deductions from Earnings Order (DEO) which takes money directly from the non-resident parent’s wages and passes it to the parent with care.

11. Both parents are responsible for making CMS aware of changes in their circumstances. For example, a child leaving the parent with care to live elsewhere.

12. The child maintenance decision makers guide from sections 96001 and 96015 says that decision makers should consider all relevant evidence when making a decision. They should establish the facts and gather all the necessary information. This can include reviewing information from both parents, and also third parties such as social services.

13. It also says that when a parent raises a dispute, which could include the child not living with the parent with care, it is up to the parent to provide evidence to prove their claims.

14. If this evidence is convincing, CMS should close the case immediately on the basis that the child is not living with the parent with care. This means that parent would no longer receive child maintenance payments. And the non-resident would no longer be required to make payments.

15. If payments had already been made when they should not have been, the parent making the payments will be entitled to reimbursement of them, from the date the child moved away from the parent with care. In accordance with section 09010 of the guidance, CMS should consider how these payments will be recovered.

16. If somebody else is caring for the child who is not their biological parent, such as grandparents, it would be up to them to apply to CMS to receive child maintenance payments from the child’s parents. CMS would then calculate how much should be paid by the parents.

17. Mr O had a child, R, with his ex-partner, Ms D. On 11 October 2016, Ms D applied to CMS for child maintenance. Mr O was liable to pay from 17 October. There was no action for some time.

18. On 30 October 2018, Ms D contacted CMS and said Mr O was not making payments. CMS wrote to him about this the next day, and a year later, on 1 November 2019. Mr O did not respond so on 20 November 2019, CMS moved the case to Collect and Pay, effective from a year earlier on 29 October 2018.

19. On 21 November 2019, CMS wrote to Mr O and said he owed £2,909.25 in child maintenance. It told him a DEO would be put in place.

20. Mr O contacted CMS on 29 January 2020 as he was unhappy with the DEO. He said he missed payments as R, was not living with Ms O at various times. CMS said it would need evidence of this to make any changes. It told him he was liable to pay £41.82 per week.

21. On 24 February 2020, Mr O telephoned CMS and said R was not living with Ms D and had been with his grandparents since May 2019. He said social services were involved and provided their contact details as CMS staff told Mr O they would contact social services directly.

22. Staff tried to call Mr O back that day but were unsuccessful. They noted they were unable to contact social services directly and that Mr O would need to provide evidence from them to support what he had said. CMS also noted they would contact Ms D and check whether she was receiving child benefit.

23. A few days later, CMS wrote to Ms D and said they had been told she was not R’s main carer and that she needed to contact them if this was not true. If she did not, she would no longer receive child maintenance.

24. Ms D contacted CMS on 29 February 2020 and said R still lived with her and was only on holiday with his grandparents. Ms D said she was still in receipt of child benefit.

25. Mr O made further calls to CMS on 5 and 13 March 2020 and insisted R was not living with Ms D. CMS told him he needed to send in evidence of this. CMS had still not made a child benefit check.

26. No further action was taken until 14 April 2020, when Mr O sent CMS a letter (dated 7 April 2020) in which he reiterated the information provided previously. He also told CMS that the money he had been paying was likely funding Ms D’s drug and alcohol addiction and he was worried about this. Mr O enclosed a letter from children’s social care which said R had been removed from Ms D’s care on 4 May 2019 due to a section 47 welfare investigation (a provision which allows organisations to investigate when they suspect a child is at risk of significant harm). It said R would be living with his grandparents until further notice. The letter said once the investigation was concluded, Ms D may be able to have contact with R, but not overnight care. It said R went back to Ms D in January 2020 but was given back to his grandparents on 20 February and would stay there. CMS did not respond to this letter or act on it.

27. On 17 and 21 April 2020, Mr O contacted CMS for an update, and it said a change of care would be done in due course. However, on 6 May 2020, CMS decided R was still living with Ms D, so child maintenance was still payable. It sent decision notices to both parties. CMS did not consider the letter from social services, as noted in its later complaint correspondence with Mr O.

28. Mr O contacted CMS again on 8 May 2020 and said he had not had a reply to his letter and that CMS was funding Ms D’s addictions as she was getting money she was not entitled to. He asked CMS to stop taking money from him.

29. Mr O contacted CMS a few days later and said he was unhappy with the decision notice and reiterated the information above. He wrote to CMS the next day and said again that R was not in Ms D’s care and that he was paying maintenance via DEO for no reason. He again said Ms D abused substances. It seems this was logged as a Mandatory Reconsideration (MR), which is a process whereby a decision maker will formally reconsider a decision that has been made and provide an outcome.

30. On 14 May 2020, CMS noted that money needed to stop going to Ms D while the issues raised were investigated. An alert was placed on the account to stop money going to her.

31. On 19 May 2020, CMS wrote to Ms D and asked her to provide evidence within 14 days that R was living with her. She telephoned CMS and said R had been living with his grandparents for three months but was moving back in with her that day. Staff noted they would contact social services about this, but nothing was done.

32. CMS denied Mr O’s MR on the basis that Ms D said R was living with her. It noted that Mr O needed to provide evidence from court or social services to show this was not the case (he had already done so). CMS told him he could appeal to tribunal.

33. On 3 June 2020, Ms D told CMS that R had moved in with his grandparents in April and she was no longer getting child benefit for him. CMS did not close the case. Instead, on 12 June 2020, CMS reinstated the DEO (payments continued for another two years). It is unclear on what basis CMS did this.

34. In September 2020, R’s grandparents wrote to CMS and said R had been living with them since May 2019. They raised concerns that child maintenance was not coming to them and was instead going to Ms D, and she was spending it. They pointed out that the money should have been coming to them. CMS did not reply.

35. On 26 September 2020, CMS opened a case for ‘receiving parent not primary carer for qualifying child’, which meant that it needed to consider whether Ms D was still the parent with care. But CMS took no action until 25 November 2020, when it asked Ms D in writing again if R was in her care and to respond with 14 days.

36. Ms D did not respond but CMS took no further action.

37. In the meantime, on 23 February 2021, Mr O contacted CMS for an update. It is not clear what he was told.

38. On 13 April 2021, Ms D telephoned CMS to report a name change. No queries were raised with her regarding R’s living situation. But on 1 May 2021, CMS noted that R was still living with Ms D and therefore the change of carer would be rejected. It is not clear what prompted CMS do this.

39. In early May 2021, CMS wrote to Mr O and said it rejected the change of carer claim (presumably from 26 September 2020 – which he did not make). CMS also increased the DEO as it wanted to clear the arrears on the account more quickly.

40. On 25 January 2022, R’s grandparents wrote to CMS again with a copy of a court order from September 2021 awarding special guardianship of R to them. They asked for child maintenance to be paid to them to support R and said he had been living with them since May 2019. CMS did not reply or take any action.

41. On 11 March 2022, a representative for Mr O called CMS and said Mr O wanted to take his own life. No further notes are available. The representative then wrote to an MP on Mr O’s behalf. They said Mr O had had a mental breakdown and his life was at risk. They said he was paying money to Ms D which was funding her drug habit and was not going to his child.

42. No further action was taken until CMS received an email from Mr O’s MP with a complaint. In May 2022 CMS replied and said it would do a child benefit check and contact Ms D again about R.

43. On 16 June 2022, CMS spoke to Ms D who said R had not lived with her since May 2020, this was contrary to the date of May 2019 that had been provided by social services, Mr O and R’s grandparents. It was further noted on 22 June 2022 that Mr O had provided a court order on 22 January 2022 (R’s grandparents did, not Mr O) that showed R was living with his grandparents.

44. CMS stopped the DEO on 28 June 2022 and closed the case the next day, with effect from 1 May 2020. MR rights were provided to Mr O.

45. Mr O replied on 11 July 2022 disputing the closure date and said it should be from 1 May 2019, when R moved to his grandparents’ house. He complained about the poor service received from CMS and said he wanted reimbursement of the payments he had made.

46. CMS contacted its technical team on 14 July 2022 who said the date from the social service letter should be used for the closure date, which was April 2019. CMS did this in September 2022. At that point, it asked Mr O for evidence of payments he had made and said it would consider reimbursement.

47. Between December 2022 and February 2023, Mr O told CMS he had made payments to Ms D and some of these were in cash. He later sent bank statements to prove payments.

48. He also told CMS that Ms D died on 10 December 2022. Her cause of death was (a) gastrointestinal bleed (b) oesophageal varices (c) chronic alcohol related liver disease.

49. On 27 April 2023, CMS said it would only consider reimbursement from the date they were told about the change and in this case, that was 14 April 2020, as that was when Mr O provided the social services letter. CMS later adjusted its position on this.

50. Mr O disputed this and complained further. CMS then decided that Mr O’s bank statements showed he made payments of £3,780 in maintenance between November 2016 and December 2019 (when the case was direct pay) but this was short of the £6,336,28 he was supposed to pay.

51. CMS also found that he had overpaid £446.27 for the period between November 2016 and April 2020. This was refunded on 27 April 2023.

52. CMS spoke to Mr O’s representative on 4 May 2023. It said it could only reimburse Mr O from the date it was made aware of the change, which was 14 April 2020. It acknowledged there were delays in handling the case and so offered £100 in compensation. The representative replied and said Mr O had paid much more and wanted an account breakdown. She added that CMS had contributed to Ms D’s death as the maintenance payments were funding her addiction.

53. On 16 May 2023, CMS then said it made an error and a further £4,014,19 was due to be returned. It paid this on 15 June 2023 and provided a further £100 in financial compensation for the delay in closing the case. CMS accepted that Mr O should not have made any payments from 4 May 2019, when R was removed from Ms D’s care. CMS reimbursed all the payments Mr O made.

54. Mr O then complained to ICE. It investigated the complaint and found that CMS had made errors in not closing the case sooner. Especially after Mr O sent CMS the letter from social services and when R’s grandparents contacted CMS to say he was living with them.

55. ICE said that even if CMS stopped the payments to Ms D, they likely would have continued to R’s grandparents as they made it clear they wanted maintenance payments. So, ICE said Mr O was unlikely to have been at financial loss. It noted that Mr O had been caused anxiety and upset by CMS’ actions and recommended that DWP pay Mr O an additional £200 in financial compensation to put this right. This meant Mr O received £400 in total.

58. Mr O complains that CMS failed to take appropriate action from May 2019 when he made it aware that R was no longer living with Ms D.

59. Our principles say that organisations should take reasonable decisions, based on all relevant evidence. They should also balance evidence appropriately and ignore irrelevant information.

60. The CMS decision makers guide also says a parent with care is defined as someone with whom the child has their home and who usually provides day to day care for the child. It also says that a parent with care does not have to been in receipt of child benefit to be considered as such.

61. The key consideration here is what CMS should have done when Mr O told it that R was no longer living with his mother, the parent with care.

62. The first time he told CMS this was in January 2020.

63. On 24 February 2020, Mr O told CMS that R was not living with Ms D and had not been since May 2019. CMS asked Mr O for evidence of this from social services, which was in line with the decision makers guide around making evidence-based decisions. This was a reasonable request.

64. Mr O provided definitive evidence from social services on 14 April 2020 that showed R had not been living with Ms D since May 2019 and she would not be able to have him overnight again.

65. At this point, in line with the decision makers guide, Ms D should not have been considered the parent with care as R was not living with her. CMS should have stopped Mr O’s payments. But CMS did not take the appropriate action to consider the evidence Mr O provided and close the case. This was not in line with the guide or our Principles. This is a serious failing which CMS accepts.

66. The case remained open for over two more years, until 28 June 2022. And during this time, CMS made several more errors and failed to take the appropriate action.

67. CMS maintained its position that R was still living with Ms D. This initially appeared to be based mainly on Ms D still receiving child benefit and her assertion that R was living with her, despite strong evidence, and eventually her own admission, suggesting this was not the case.

68. The decision makers guide from sections 96001 and 96015 says that decision makers should consider all relevant evidence when making a decision. They should establish the facts and gather all the necessary information. This can include reviewing information from both parents, and also third parties such as social services.

69. In May 2020, CMS denied a MR from Mr O on the basis that he needed to provide evidence from social services on R’s living situation. However, Mr O had already done this. The decision makers guide says CMS should consider all the relevant evidence and it is clear it did not do this. This is a further failing.

70. Equally, in June Ms D herself told CMS that R was not living with her, and she was no longer in receipt of child benefit, but CMS did not close the case. Instead, it continued taking payments via DEO from Mr O. Again, CMS did not consider all of the relevant evidence. This is also a failing.

71. The situation continued despite R’s grandparents contacting CMS in September 2020 to say R had been living with them since May 2019.

72. While CMS attempted to contact Ms D at that time to ask if R was living with her, when she did not respond with 14 days as per CMS’ request, it took no further action to close the case. CMS had an opportunity to clarify the situation when it spoke to Ms D in April 2021 but did not do so. Instead, it increased Mr O’s DEO. The decision makers guide says CMS should establish the facts, gather all necessary information and make evidence-based decisions. CMS actions were not in line with this, which is evidence of a failing.

73. In January 2022, R’s grandparents provided a court order showing they had special guardianship of R. CMS took no action. This is an indication of a failing as again, CMS did not consider the relevant evidence.

74. It was not until Mr O’s MP became involved in June 2022 that CMS correctly closed the case.

75. Based on the information above, it appears CMS made several significant errors while dealing with this case. It continuously ignored important evidence and made flawed decisions on the case. This is not in line with the guide or our principles. This amounted to serious, repeated maladministration.

76. Had CMS acted appropriately and closed the case when Mr O provided the letter from social services in April 2020, it is likely all the events that followed would have been avoided.

77. In line with the decision makers guide, CMS should have closed the case at that point and stopped Mr O from making payments. As Mr O would not have been liable for making payments from May 2019, the date R was removed from Ms D’s care, CMS then should have considered how Mr O would be reimbursed for the money he had already paid. But none of this happened.

78. Instead, Mr O continued making payments unnecessarily to Ms D. Mr O says that because of this, he was unable to afford separate payments to R’s grandparents who were caring for him. He says this led to R missing out on opportunities and experiences the extra money may have provided. Mr O was paying hundreds of pounds per month to Ms D, when this money should have been going to help towards the costs of caring for R, which is the purpose of child maintenance payments. As such, there is a possibility that R would have missed out on opportunities the child maintenance payments could have provided. This is a serious issue which CMS has not recognised.

79. Mr O tells us that knowing the money was not going to R was ‘extremely frustrating and distressing’. He says he felt like CMS was not listening to him and there was nothing he could do about it which was upsetting. Mr O tells us that he often felt ‘helpless and depressed’ and that he knew when he went to visit R that he, and his grandparents, could have done with the child maintenance monies which were going to Ms D. He says the issues continue to cause him significant distress and it is ‘very painful’ to think about what was happening and how little CMS listened to his concerns.

80. Additionally, had CMS closed the case at the right time, Mr O would not have had continued, protracted contact with it. Mr O says this was a great source of distress for him from when he provided the social services letter in April 2020 until CMS closed the case in June 2022. We have no reason to dispute this, especially when Mr O had given CMS the appropriate evidence to make the right decision on multiple occasions. Mr O also says that even after CMS closed the case, he continues to experience significant distress because of what happened. We can understand why Mr O feels this way.

81. CMS’ actions led to Ms D receiving child maintenance monies incorrectly between April 2020 and June 2022. We have considered the impact of this on her.

82. Mr O says that Ms D was addicted to drugs and alcohol. He had made CMS aware of this and says its actions contributed to her ability to fund her addictions and her death. There is no doubt that CMS’ actions gave Ms D access to money that she should not have had. And it is likely that she could have used this money to fund her addictions. Ms D’s death certificate has two valid points associated with alcohol abuse, these are oesophageal varices – enlarged veins in the throat, commonly associated with serious liver conditions, and chronic alcohol related liver disease.

83. We note that addiction is a complicated issue, but CMS’ actions gave Ms D a source of funds to enable her to abuse drugs and alcohol. We cannot say that things would have been different had Ms D not received the child maintenance, but we recognise Mr O has a very valid, and serious concern which CMS has not recognised.

84. Mr O says that knowing his money was allowing Ms D to fund her addictions made him feel like he was ‘fuelling’ it. He tells us that he feels enormous guilt and responsibility for Ms D’s death given she was likely buying substances with the money he was paying in child maintenance. Mr O tells us that Ms D was the mother of his child and her death has affected him massively, especially as he knows that R misses her at a lot. He says a mother cannot be replaced and this is an issue that will affect him and R for the rest of their lives.

85. Mr O says he continues to carry responsibility for Ms D’s death and the thought that R does not have his mother because of addictions that he was funding. He says that the matter continues to cause him significant distress. This a significant, long-lasting injustice to Mr O.

86. Mr O says he had a mental breakdown because of CMS. We asked him for evidence of this, such as visits to his GP, mental health professionals or hospital. He was able to provide fit notes from his GP which showed he was unable to work for various periods in 2021. These notes do not specifically mention that stress from issues with CMS was the cause of Mr O being unfit for work. But we do not wish to downplay the significance of the issues we have identified and the serious impact they likely would have had on Mr O’s mental state.

87. We note that CMS has already paid Mr O £400 in financial compensation for its errors, but we do not think this goes far enough to put right the prolonged distress he experienced since April 2020. As such, we have made further financial recommendations.

1. The evidence suggests that on several occasions, CMS failed to act on information that Mr O provided which showed his child was not living with his ex-partner, Ms D. This meant Mr O continued making child maintenance payments when he should not have been. Although CMS has reimbursed Mr O for these payments, it has not put right the emotional impact of its errors.

2. Mr O continues to experience significant distress because of CMS’ actions. Whilst CMS is not directly responsible for Ms D’s death, there is enough evidence to suggest that its actions contributed to Ms D being able to fund her substance abuse, which sadly contributed to her death. Therefore, our current thinking is to uphold the complaint.

3. We recommended that CMS pay Mr O an additional £5,000 to put right the emotional impact of its errors. CMS should also carry out a review to understand why it did not act on the information Mr O provided.

4. We were very sorry to hear about the circumstances of this complaint and the experience that Mr O had.