Child Maintenance Service (CMS)

3. Mr L complains that CMS has declined to refund maintenance payments it collected from him during a period he was not liable for this.

4. He says this has left him in debt and caused his mental health to deteriorate.

5. Mr L wants CMS to refund the overpayments made and to change its process when checking parental claims about maintenance liability.

6. Mr L has a son for whom he was liable for child maintenance from April 2016 onwards. He was making payment via Direct Pay to his ex-partner. This means he was paying her the amount CMS calculated was required straight to her, rather than via CMS. There is no charge associated with making payments in this way.

7. In November 2020 Mr L told CMS that his son was no longer in full time education. Because of this, he believed he was no longer required to pay maintenance and was entitled to a refund of some sums he had already paid. CMS wrote to him later that month rejecting his request for his liability to be reviewed.

8. Mr L requested a Mandatory Reconsideration (MR, the first step in appealing a maintenance decision) as he maintained his son did not qualify for maintenance. CMS declined to amend its decision on two occasions, leading to Mr L then appealing to the First Tier Tribunal about the matter in February 2021. This is the next step in disputing a decision about child maintenance.

9. The Tribunal heard Mr L’s case in December 2022 and agreed that his son had not been in full time education between October 2020 and October 2021.

10. During the course of his appeals, Mr L’s ex-partner contacted CMS to say she had not received any payment from him since November 2020. This led to it instigating a Deduction from Earnings Order (DEO) in April 2021. A DEO involves CMS instructing a parent’s employer to deduct a specific sum from their salary and pay this to it directly. The parent then receives the remainder of their salary from the employer, and CMS passes the sum it gets from the employer onto the other parent. Because CMS is more involved in the payment process, there are charges for both parents for this to be done. In addition, there is a charge for setting up the DEO.

11. CMS collected maintenance from Mr L via a DEO from May until November 2021, when he left his job. It set up a new DEO (with a second set up charge) in April 2022 when Mr L started a new job and collected payment from him in accordance with this. Mr L did not make any payment during the November 2021 to April 2022 period.

12. CMS wrote to Mr L in January 2023 and explained it had closed his maintenance case in accordance with the Tribunal’s decision. It told him it had removed both DEO set up charges and that he had overpaid his ex-partner £3,086.07. CMS told Mr L to contact her if he wanted this to be returned to him.

13. After being unable to obtain a refund in this manner, Mr L asked CMS to reimburse him. It declined to do this in July. It said this was because it had followed the correct processes when considering his claims about his son no longer qualifying for maintenance, and again when it placed him onto a DEO.

14. Mr L was unhappy with this decision, so he asked the Independent Case Examiner (ICE, the second-tier organisation that considers complaints about CMS) to review his complaint. ICE issued its report in June 2024 and agreed that CMS had followed its process. It explained CMS was correct not to refund the overpayment. It did, however, consider that a consolatory payment was appropriate. It arranged for CMS to pay this, as well as refunding the charges Mr L had incurred for the DEO process, given that the Tribunal said his liability had ended before CMS had set this up.

17. When we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications that something has gone wrong.

18. There is no dispute that Mr L has overpaid maintenance. There seems to be an acceptance that this was not because of any error on his part.

19. CMS stated it had followed the correct processes when considering whether to repay the maintenance payments. It said it correctly considered the claims about Mr L’s son’s education status and decisions around placing a DEO against his accounts.

20. We have considered what CMS’ DMG says should happen where there is an overpayment. Section 59015 explains that it should consider whether the parent who has overpaid should receive a refund or reimbursement. This applies where there are no arrears to offset any overpayment against, as is the case here.

21. Section 59017 goes on to explain that, in Mr L’s case, the overpayment is a reimbursement rather than a refund. This is because CMS categorises a reimbursement as being where the overpaid maintenance has already been paid out to the other parent. It states that there is no automatic right for a reimbursement, which should only be provided ‘on an exceptional basis as the CMS no longer holds the funds.’

22. Following from this, section 59018 says that reimbursements are therefore discretionary and based on the merits of the case. This confirms there is no obligation for CMS to return an overpayment on this basis.

23. Section 59019 states:

‘In general, when deciding whether to consider a reimbursement, DMs should ensure that: • The [non-resident parent] has asked for a reimbursement • The overpayment was caused by a CMS error (for example the CMS failed to act on information given to them) • any reimbursement is only from the date they were told about the change (the notified date)’.

24. We have looked at whether CMS acted correctly when Mr L contacted it with information about his son’s education status.

25. CMS initially checked whether Mr L’s ex-partner was still receiving Child Benefit for their son. DMG05030 explains ‘the CHB presumption’. Child Benefit (which CMS abbreviates to CHB) entitlement is based on an overall care test which is broadly similar to its own policy on day-to-day care. CMS therefore uses payment of Child Benefit as ‘a very good indicator’ as to which parent is the one with care of the child., as the eligibility to claim Child Benefit once a child reaches 16 is dependent on their enrolment in full time education, as is also the case for maintenance liability, CMS also uses this as an indicator for whether that child is eligible for maintenance payments.

26. Following on from this, if a child is over 16 years old, they must be in full time education to qualify for Child Benefit. As this is the same for a child to quality for maintenance, checking whether Child Benefit is still being claimed is often the first step in situations like Mr L’s. CMS found that Child Benefit was still being paid to the other parent and CMS asked her to provide some evidence of their child being in full time education.

27. DMG99008 explains that, where a paying parent believes their maintenance liability should end because a child no longer meets the statutory definition of a Qualifying Young Person, but Child Benefit checks disagree, CMS can ask the other parent to provide evidence of the child still being in full time education. It does not oblige it to ask for this. DMG99008 also states that CMS ‘is not legally entitled to contact a child’s employer, school or college for information’.

28. We think that CMS acted as it should do at this point. It asked Mr L’s ex-partner about their child’s status and she confirmed their child was still in education. CMS asked her to provide this evidence but it was not received. We note there is no requirement for CMS to pursue documented evidence from the Parent with Care. We have also considered what CMS could have done next.

29. There is no specific guidance for this scenario, but CMS has provided us with screenshots which show the process on a parent’s account when an issue like this arises. It says this is current information but expects this would have been similar in 2020.

30. The screenshots say, ‘if the paying parent still disputes the Child Benefit (CHB) status advise them to contact HMRC Child Benefit Team to report allegations of CHB Fraud via the ‘report tax fraud or avoidance’ online service…’. It goes on to explain that the paying parent will ‘still be liable to pay maintenance for the Qualifying Child whilst the change is being investigated.’

31. It does not seem CMS gave Mr L this information. That said, he was not necessarily disputing the Child Benefit status. He was disputing his liability for child maintenance and may not have known about Child Benefit not being available when a child of over 16 is no longer in full time education.

32. Had CMS given Mr L this information, he would still have been obliged to continue to pay maintenance. The overall position would therefore not have changed significantly as CMS would still have proceeded to collect maintenance from him in the absence of him paying this voluntarily. The next step would be for the NRP to challenge the decision via an MR, as Mr L did.

33. We are also mindful that when the judge reached their decision about Mr L’s liability at Tribunal, they did not do this based on the same information and evidence CMS had previously had access to. It seems the judge found that Mr L’s ex-partner had provided evidence as part of the hearing, which allowed them to reach a decision.

34. Based on what we have seen, CMS responded appropriately to the reports Mr L gave it of his son no longer being in full time education. It checked whether Child Benefit was still being paid to Mr L’s ex-partner and enquired with her about their son’s education status. When she confirmed their son was still in full time education, CMS was right to tell Mr L it could not amend his liability and to signpost him to use the appeal route that is set out in law for challenging decisions like this. As it did not make an error, its decision to not provide a reimbursement is in line with CMS DMG 59019.

35. It is possible that, if Mr L’s ex-partner had been more forthcoming with information before the Tribunal, this situation may not have arisen. It is evident that Mr L had been paying maintenance up to November 2020 as he had no arrears on his account at that point. Had it been confirmed their son was no longer in full time education at that time, CMS may have closed the case then. As it was, it took until December 2022 when the Tribunal hearing took place for it to be confirmed that what Mr L had reported two years previously was correct.

36. While we have every sympathy for the position Mr L is now in, having overpaid by more than £3,000, we are not able to say that CMS is wrong in declining to return this to him. We realise this will be disappointing, and we wish Mr L well in his endeavours to recover this sum in any other manner he deems appropriate.

1. We have carefully considered Mr L’s complaint about CMS. We are sorry to hear about his frustration in trying to get a refund for child maintenance payments he was no longer liable to make.

2. We have no doubt this would have been both worrying and upsetting and we recognise Mr L’s view that the situation is unfair. We have seen that CMS has acted as it should have done in response to his request for a refund. It has refunded the sums Mr L paid to it (the charges associated with it collecting payments from him) for the period in question, and it has not benefitted from the overpayment itself. It is Mr L’s ex-partner who has received the overpayment and CMS is not responsible for recovering this for him. We appreciate this will be disappointing for Mr L. We have explained our decision below.