Independent Case Examiner

CMS

6. Mr A complains that CMS put undue and unsupported emphasis on the Child Benefit recipient when making its determination on a primary carer.

7. Mr A complains that CMS declined to reimburse him payments that he made because of CMS errors and delays.

8. Mr A tells us that he felt bullied and discriminated against by CMS and frustrated he needed to go to the Tribunal. He is also frustrated that he overpaid monies he did not get back.

9. Mr A would like CMS to revise its approach to assessing shared daily care. He would also like it to look again at its decision not to repay him monies he overpaid. Mr A would also like an apology.

ICE

10. Mr A complains the ICE failed to address the impacts of the CMS failings identified by it in its report.

11. Mr A said that despite all his complaints being upheld, the ICE’s failure to address the impact has led to a loss of trust and he feels let down by it.

12. Mr A would like a financial remedy that takes account of the emotional impacts on him of CMS’ failings.

13. Mr A was liable for child maintenance for his two children, starting from November 2021. He paid the other parent who was looking after the children (called the Parent with Care or PWC) directly. This is referred to as Direct Pay. The role of CMS in this situation is to calculate the amount that needs to be paid but it does not have a role in collecting those monies.

14. At the start of 2024, Mr A’s weekly liability was £117.21 which included a proportion of shared care of the children. Near the end of January 2024, the PWC contacted CMS and told it Mr A had equal shared care of the children. This resulted in CMS recalculating his child maintenance payments the following day. These were reduced to £68.05 per week effective from the date the PWC informed CMS in January 2024.

15. The following day Mr A contacted CMS via the online portal to request a review as he believed there was also equal ‘day to day’ care. This refers to the parent who has the primary responsibility for the child's daily needs and upbringing and can be a shared responsibility between both parents.

16. CMS wrote to the PWC two days later to ask if she was still the primary carer of the children. She responded the following day to say that while the courts had decided on an equal number of nights where the children would stay with each parent, she was still the primary carer. She said she was the contact point for the school and the person with care of the children’s health needs such as GP and dentist appointments. She added that she was also the person who received Child Benefit (CHB). CHB is a tax-free payment to people responsible for a child under 16, or under 20 if they remain in approved education or training.

17. Mr A’s request for a review was declined, and he was sent notice of that decision. He called CMS soon after and a Mandatory Reconsideration (MR) was raised against that decision. An MR is a challenge to a decision that relates to child maintenance liability.

18. A few days later Mr A spoke with CMS and when questioned about his role in providing equal care he provided detail of the role he played in providing that care. He also provided evidence of the court order previously mentioned that said he was a contact for the school, GP and dentist and was contributing both financially to the children’s extra-curricular activities. He also provided details of the dates he had taken the children to compete in those activities.

19. CMS contacted the PWC the following day and asked her the same questions asked of Mr A. She confirmed time and costs were split equally but reiterated she was the primary contact for school, GP, and dentist and that she was the one who received the child benefit.

20. At the beginning of March 2024, CMS declined Mr A’s MR.

21. The PWC contacted CMS to tell it that Mr A had not made a payment since the end of January 2024. CMS sent a text to Mr A about the missing payment a few days into March 2024 and Mr A contacted CMS about it. An agreement was reached to make additional payments to the PWC over the coming eight months, again by direct pay.

22. Mr A then filed an appeal with the First Tier Tribunal against the decision to reject the request for a review. He also asked his MP to intervene on his behalf with CMS. DWP wrote to his MP at the beginning of May 2024 and apologised for an earlier administrative error (something we are not considering) and offered a consolatory payment to Mr A of £50.

23. Near the end of June 2024, Mr A requested a review of his liability as he had been awarded child benefit for one of the two children, backdated to mid-April 2024. At the beginning of July 2024, the PWC requested a change from Direct Pay to Collect and Pay (where CMS collect the monies from Mr A and pay it to the PWC) as she had not received the June 2024 payment from Mr A. CMS sent a text message to Mr A, and he called to say that, given he had submitted an appeal, he had decided to hold off on making payments and wait the outcome of that appeal, so he did not overpay. CMS said it would wait for the outcome of the appeal.

24. A week later CMS removed one of the children as a qualifying child for child benefit (the one living with Mr A) and wrote to both parents to confirm this. In mid-July 2024, Mr A called CMS and said the child benefit case should be closed as each parent now received child benefit for one child and the child staying with him should be considered as a Relevant Other Child (ROC). A "Relevant Other Child" is a child who is living in the same household as a non-resident parent or partner, and for whom the non-resident parent or partner would receive Child Benefit but does not. CMS told Mr A that it would need to wait for the outcome of the appeal.

25. At the beginning of August 2024, CMS spoke with the PWC who confirmed she had not received any more payments from Mr A. CMS decided to move the case to Collect and Pay; despite having told Mr A it would wait for the appeal decision before reviewing his payment liability. CMS then sent a Collect and Pay notice to Mr A and asked him to set up a standing order to make the payments it detailed in that notice. Mr A called CMS and said he had previously been told not to make payments and to await the outcome of the appeal.

26. He then requested a review stating that the PWC was not the primary carer from near the end of January 2024 as well as an MR against the decision not to remove the child staying with him from the case. CMS refused the MR in mid-August 2024 and the request for a review was refused at the start of October 2024. CMS wrote to Mr A in mid-August 2024 stating that given he had not made any payments he needed to do so immediately, or he may face legal action. He did not make any and a Deduction from Earnings Order (DEO) was sent to his employer to have it deduct monthly amounts form Mr A’s salary and sent it to CMS. A DEO is a legal instruction from CMS that instructs employers to deduct child maintenance payments from an employee's pay or pension.

27. Mr A called CMS to dispute the DEO and reiterated what he had previously been told about waiting for the appeal before making payments. He also sent in a further complaint. He then called CMS to confirm it had received the complaint and was told it had and that he had been given incorrect information about not making payments until the appeal was complete. It apologised to him for that and explained payments did still need to be made.

28. The Tribunal made its decision in the first week of November 2024 and instructed CMS to close the case from near the end of January 2024 as it was satisfied Mr A provided day to day care to no lesser extent that the PWC.

29. In mid-November 2024, CMS confirmed that the appeal decision had been completed, and Mr A did not have to make any payments of child maintenance from late January 2024. Mr A, via his MP emailed CMS at the start of December 2024 attaching a complaint letter and evidence that Mr A had paid the PWC £1490.65 between March and May 2024 and he wanted those payments reimbursing. He said he was still waiting for a response to his October 2024 complaint. A few days later Mr A called CMS to say his employer had received correspondence from CMS asking it to deduct monies form his salary. CMS apologised and said this should not have been sent out.

30. At the start of January 2025, CMS responded to Mr A’s complaints and offered a consolatory payment of £150. It also directed him to the Independent Complaint Examiner (the ICE) should he wish to escalate his complaint. His complaint was accepted by the ICE at the beginning of January 2025 and a response provided at the end of July 2025. It partly upheld his complaint. It asked CMS to apologise for the poor service, provide an additional consolatory payment of £100 and to consider a reimbursement of the additional payments he had made to the PWC.

31. CMS reconsider and then declined the reimbursement.

32. Mr A brought his complaint to our Office in October 2025.

CMS

Undue emphasis on the Child Benefit recipient

33. Mr A told us that despite providing evidence of equal shared care and responsibilities, CMS put undue emphasis on which parent received child benefit and determined he should still pay child maintenance. He told us this resulted in him having to take an appeal to a Tribunal to get a decision in his favour.

34. CMS said it considered the evidence both parties submitted and came to a decision that they had shared care but not equal shared care, the case should stay open, and Mr A should continue to pay child benefit.

35. When an NRP claims that all the care provided to a child is equally shared by both parents, each then being considered a PWC, they can ask CMS to remove the need for them to pay child maintenance.

36. Section 05033/34 of the CMS DMG says:

CHB in payment: PWC status disputed

If who should be treated as the PWC is disputed, DMs should

1. presume that whoever is receiving CHB for the qualifying child (QC) is providing the greatest level of day to day care for them and treat that person as the PWC unless evidence is received to prove that this is not the case. (This is referred to as the CHB presumption)

2. note that the onus will be on the party disputing who should be treated as the PWC to provide this evidence, refer to the meaning of home and the meaning of day to day care

The other party should be given the opportunity to comment on any evidence submitted and to provide evidence of their own.

Note: if the evidence shows that both parties are effectively providing equal day-to-day care of the QC, then neither parent can be treated as the NRP. In that event, the case should be closed

37. The decisions given in the CMS considerations below are that of a CMS DM who gives their view on the evidence and in some cases reaches a balance of probabilities decision. When we look at such a decision our role is to determine whether the decisions reached were reasonable based on the information the CMS had at that time.

38. The request from Mr A in January 2024 automatically triggered a review to try to determine if there was still a primary career for the children or if all that care was equally split. The review was opened and the evidence uploaded to the portal was reviewed. At this point, Mr A was not in receipt of child benefit. CMS also spoke with the PWC who told them that she continued to provide more of the day-to-day care. Mr A’s request was rejected, and he was given the opportunity to ask for a MR which he did.

39. Where both parents provide an equal number of nights of care (referred to as Shared Care), the DM will also need to explore the amount of day-to-day care provided by each parent. There is no statutory definition of day-to-day care so the CMS DMG sets out what evidence the DM should consider in this case.

40. The DM should ask both parents questions such as:

Who does the child spend most of their time with when they are not in school, nursery, or childcare

Who pays for most of the child’s clothes and mealsWho is the usual contact for the child’s school

Who’s GP and dentist is the child registered with and who arranges appointments and accompanies the child

41. If one or other parent disagrees with the responses given by the other, then it is up to that person to provide evidence to support their position. This might include things such as:

Evidence from school, GP, and dentist

Evidence from bank statements, receipts or similar

42. The guidance then explains that:

DMs should use the information provided by both parties to decide who, on the balance of probabilities, is providing the greatest level of day to day care for the QC. This person should be treated as the PWC.

43. We have reviewed the call notes relevant to Mr A’s and the PWC’s responses to the questions asked by the DM when undertaking the request to have an MR. We can see that these calls were carried out in line with the guidance above.

44. In his call, Mr A said he would provide evidence to support his responses to the questions. We can see that he did so which included a court order for shared care, evidence of him being registered on behalf of the children at the GP and dentists, as well as receipts for activities he had paid for and taken the children to.

45. We have seen that the DM gave a view on the evidence and concluded that ‘as well as the Child Benefit being in payment to the PWC,’ they ‘reached a decision on the balance of probabilities based on speaking to the customers’ that the PWC provided more of the day-to-day care.

46. We can see that the DM acted in line with the guidance when reaching their decision and we have not seen anything that would lead us to the view that the decision was unreasonable.

47. This type of decision by CMS does carry a right of appeal to a Tribunal as a means of having the decision reviewed by qualified third party, in this case a judge. If the Tribunal reaches a different decision this does not mean the original one was wrong but that the Tribunal has reached a different view on the evidence before it.

48. We can appreciate that Mr A was frustrated that despite providing evidence that he believed showed the entire care of their children was shared equally, CMS reached a different decision. We understand too his frustration at having to go to a Tribunal to get the decision he sought. We are sorry to hear that.

49. The evidence shows that, while we can see that CHB did play a role in the decision made by the CMS DM, it was not the only determining factor in the DM’s decision. The decision reached was in line with CMS DMG.

50. We will not take any further action on this part of the complaint.

CMS declined to reimburse him

51. Mr A told us that when he asked CMS to reimburse the money he had paid to the PWC between March and May 2024, it declined to do.

52. Point 96035 of the CMS DMG says:

overpayment reimbursements or recoveries – if an overpayment has been identified, the reimbursement and recovery of that overpayment is a discretionary decision.

53. In its response to Mr A’s MP at the beginning of January 2025, CMS said:

54. As Mr A’s case was on our Direct Pay service during the period in question, no monies were paid to us, and any reimbursement will need to be pursued independently.

55. This is in line with point 59021 of the CMS DMG which says:

Where appropriate, DMs should ask the NRP to contact the PWC to request the reimbursement payment.

56. However, that guidance also goes on to say:

The CMS should only consider reimbursement when the PWC will not make the payment.

57. The ICE asked CMS to consider the reimbursement in line with point 59019 of the guidance which says:

In general, when deciding whether to consider a reimbursement, DMs should ensure that 1. the NRP has asked for a reimbursement 2. the overpayment was caused by a CMS error (for example the CMS failed to act on information given to them) 3. any reimbursement is only from the date they were told about the change (the notified date).

58. CMS considered the request and said that it would not reimburse Mr A as it had not made any errors that led to the overpayment. It had previously reached a decision that Mr A retained responsibility for making child maintenance payments and that he should continue to do so. The recovery of those payments can only be made by Mr A seeking them directly from the other parent.

59. We appreciate that Mr A is frustrated that he paid child maintenance for a period that the Tribunal later judged to have been one of equal shared care. We see he feels the payments were unjustly made and it is upsetting for him that these cannot be recovered. While not wishing to diminish this, we can see CMS acted in line with its guidance when it considered MR A’s request for reimbursement. We will therefore not take any further action on this part of the complaint.

ICE

The ICE failed to address the impacts on him

60. Mr A told us that the financial remedy offered by the ICE was insufficient to address the impact on him of the failings by CMS that the ICE identified.

61. We have reviewed the ICE report and can see that it upheld Mr A’s complaint to it. It then recommended that CMS apologise and pay an additional £100 to Mr A for the stress and frustration caused by CMS’ service failings. This was in addition to the £150 already paid by CMS.

62. The ICE also asked CMS to consider a reimbursement of the monies Mr A paid in line with its guidance.

63. The failings identified by the ICE were:

• Mr A was incorrectly told he could pause payments to the PWC while the Tribunal decision was outstanding • CMS incorrectly moved the case to Collect and Pay (where CMS receive the payment and pass it on to the PWC) and issued a Deduction from Earnings Order (DEO – an instruction to employers to deduct child maintenance payments directly from an employee's wages).

• CMS delayed in closing his case. It should have been closed within three weeks, but it took five.

• CMS delayed in responding to one of his complaints. It should have responded to him within three weeks, but it took five.

• CMS did not properly handle the reimbursement request. CMS did not tell Mr A to contact the other party to discuss a reimbursement and if that was not successful, then return to CMS and have it consider a request.

64. The ICE acknowledged these failings would have caused Mr A distress and frustration.

65. When the ICE takes a view on a financial remedy (one already offered or one it is going to recommend) it does so by referring to the Department for Work and Pensions (DWP) guidance on financial redress, where is says:‘4.1. The PHSO has published Principles for Remedy to help public bodies decide fair, reasonable, and proportionate remedies for the effects of maladministration. DWP has had regard to these wider principles in drawing up the guiding principles which are specific to the DWP’s Special Payment Scheme.’

66. Those principles include ensuring that individuals are not disadvantaged by maladministration and any injustice should be addressed on a case-by-case basis. When considering a special payment the Guidance says:

‘5.11. Consolatory payments usually range between £50 and £500, although lower or higher payments may be appropriate having considered the individual circumstances of a case, in the context of the guiding principles’.

67. The recommendation of £250 total remedy made by the ICE falls within the range recommended in the DWP’s ‘Financial redress for maladministration’. This is also in line with what has previously been recommended in similar cases in recognition of stress and frustration experienced by complainants.

68. We will also consider our ’Principles for Remedy’ and our ‘Severity of Injustice scale.’ Our principles say an appropriate range of remedies can include an apology, explanation, remedial action, or an acknowledgement of responsibility. We can see in its complaint response that CMS acknowledged poor service and apologised.

69. This recommends a figure of £120-£550. We can see the ICE has recommended a financial remedy of £250. While we appreciate Mr A feels this is not enough to put right CMS’ errors, we see this is in line with DWP’s Financial Redress guidance. Therefore ICE has acted in line with its guidance, and we will take no further action.

70. We hope our statement provides clarity for Mr A on how we reached our decision.

1. We have carefully considered Mr A’s complaint about the Child Maintenance Service (CMS) and Independent Case Examiner (ICE).

2. We are sorry to hear of the difficulties he experienced in relation to CMS’s administration of his child maintenance case. We appreciate these events have left him feeling distressed and frustrated.

3. We have considered the evidence available to us and found CMS acted in line with its guidance when it considered his requests to be an equal carer for his children. We also found it acted in line with its guidance when it considered his request for reimbursement of child maintenance he paid to the mother of the children in the period between CMS’s decision and the findings of the Tribunal.

4. We found that the ICE acted in line with the DWP guidance on financial remedy when it identified failings on the part of CMS and asked CMS to apologise to Mr A, provide an additional remedy of £100 and reconsider his request for reimbursement.

5. This means we will take no further action on this part of the complaint.