Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome the following officials to the meeting: John Noble and Sinead Wylie. I invite you to go ahead with the briefing, please, and we will then come back to you for questions.

Mr John Noble (Department for Communities): Thank you, Mr Chairman and Committee members, for allowing us to come and brief you this morning again on the Child Support Enforcement Bill, which, as you know, the Minister is bringing through the Assembly. As previously noted, I have policy lead responsibility for child maintenance in the social security policy, legislation and decision-making division in the Department. My colleague Sinead Wylie is the acting head of operations for the Northern Ireland Child Maintenance Service (CMS).

I will not give you a recap of the Bill, because the previous session covered that. I will take you forward to the consultation that the Department carried out on the document 'Child Maintenance: Accelerating Enforcement (Administrative Liability Orders)'. On 8 July 2024, the Department published a consultation document on the proposals to introduce administrative liability orders. That consultation ran for a period of 12 weeks, until 29 September.

The consultation set out our plans to implement existing powers that allow the Child Maintenance Service to make an administrative liability order against a person who has failed to pay child maintenance and is in arrears. The consultation sought views on the implementation of existing powers to make administrative liability orders, it detailed the Child Maintenance Service's enforcement powers and explained the current court-based liability order process. It also detailed how the appeals process would work.

As part of the consultation exercise, the Department held an online stakeholder engagement session on 17 July, and that session invited external stakeholders to meet and discuss the Department's proposals around the administrative liability order. The session was attended by two organisations. That was a useful exercise that afforded officials the opportunity to inform stakeholders on the details and practicalities of introducing the administrative liability orders in Northern Ireland.

As the Department for Communities' consultation closed only on 29 September, you may wish to know that officials are still fully analysing the responses that were received. When the Department finishes that analysis, we will, of course, publish a formal report on the consultation in due course. I can, however, provide the Committee with a summary of the analysis that has been conducted so far.

The Department received a total of 12 responses. However, not all respondents provided comments on all the proposals outlined in the consultation document. Ten responses were from individuals, and two responses were from organisations. Some of the headline responses to the consultation that may be of particular interest to the Committee are summarised as follows.

On the Department's plan to introduce an administrative liability order against parents who do not pay their child maintenance, of the 12 consultation responses that were received, 11 were in favour of the process, with only one response not in favour.

On the proposal to give the paying parent a notice period of at least seven days — 20 days in overseas cases — before an administrative liability order is made in which the liability order will not come into force if maintenance is paid, nine respondents agreed to the seven-day notice and three respondents did not agree. Of those who disagreed with the seven-day notice, one respondent thought that it was too long and that action should be immediate, while the other two respondents believed that the period should be longer. One respondent felt that there should be an extra allowance for being overseas so that children did not face the adverse impact of late or missing maintenance payments.

On the question:

the circumstances that were set out in the consultation document at 5.7 were:

and, at 5.8, were:

Eight respondents agreed with the proposed discharge proposals, two respondents did not agree with the proposals, and two respondents did not answer that specific question. The respondents who did not agree with the proposals suggested that loopholes should be tightened to prevent deliberate avoidance by the paying parent, such as by seeking continual adjustments to the calculation, moving jobs frequently and by setting up and cancelling direct debits.

On the next question:

eight respondents stated that there should be no additional circumstances for discharging the liability, two respondents stated that there should be additional circumstances, and two respondents did not answer that specific question. One additional circumstance that was suggested was when the child is under the care of social services, and the other suggestion was about the effect that it has on a paying parent when the receiving parent can prevent the paying parent from having contact with the children.

On the question:

nine of the 12 respondents did not think that there could be any unintended consequences. One respondent did not provide a response. Two respondents felt that there could be unintended consequences. Those were referenced as suicide and child maintenance not being court-ordered, so that it then cannot be counted as income towards, potentially, a paying parent's mortgage calculation.

On the question:

seven of the respondents thought that the administrative liability order proposals would allow the Child Maintenance Service to move quickly, three respondents thought that the proposals would not allow the service to move quickly, and two respondents did not answer that specific question.

On the question:

10 respondents agreed with the 21 days, and two respondents did not agree with the proposal. Of the two respondents who did not agree, one respondent felt that it should be 14 days rather than 21 days, and the other respondent felt that the appeal period should be longer.

On the final question that we asked in the consultation:

10 of the 12 respondents thought that there were sufficient protections on offer to the paying parent, one respondent thought that there was not, and one did not specifically answer that question.

As I said, that is a summary of our initial analysis. Obviously, we will finalise the analysis of the consultation, and we hope to publish a final report on it in due course. However, initial analysis shows that most respondents seem supportive of the Department's proposals outlined in the consultation document. I hope that the Committee finds this short briefing informative and helpful, and we are happy to take questions.

The Chairperson (Mr Gildernew): Thank you. Go ahead, Maurice.

Mr Bradley: Thank you very much for your presentation. I apologise for missing the start of it. I had to go up to my room for my notebook.

In a situation where a parent has left the country for a period of 20-plus years and returns, is there any recompense for the single parent who brought up the child? Can they go after that missing parent?

Ms Sinead Wylie (Department for Communities): No. The child maintenance assessment applies only during the period in which they are habitually resident, so the answer is no.

Mr Bradley: Thank you.

Mr Kingston: Thank you for that report. I asked this question of the Research and Information Service (RaISe) official earlier. It is not directly in the consultation, but are you satisfied that the administrative liability orders are as robust as the current court-based process? I do not understand all the differences between the two, but it is welcome that the new orders will be quicker. Will they be equally robust when they need to be enforced?

Ms Wylie: They will have exactly the same powers as the court-based orders. The only change is that we will do it in-house, so the process will be shortened from 22 weeks to an average of six.

Mr Kingston: It then becomes legally enforceable? I do not know whether that means that, ultimately, the order has to go through court in some way.

Ms Wylie: The administrative liability order will make the debt legally recognised in the same way as the court-based order does. We will have exactly the same powers after the administrative liability orders are in place as we have currently with the court-based orders. It opens up that doorway to take further action through the Enforcement of Judgments Office. The new order has exactly the same legal standing as the court-based order.

Mr Kingston: OK. Thank you.

Ms K Armstrong: I want to follow up on Brian's point. How have appeals worked elsewhere when the liability orders have been brought in? Have they worked seamlessly or is it —?

Mr Noble: In GB, they have not brought the process in yet. There has been a delay in introducing it. Originally, the Department was going to bring it in behind GB, but it now looks as though we will be playing catch-up and bringing it in at the same time as GB. The anticipation is that the secondary legislation will be brought forward in the new year, with the process to be in place by May 2025. That is the estimate at the moment.

Ms K Armstrong: Is the intention for the appeal to be carried out by the Appeals Service within the judicial —?

Ms Wylie: The appeal will work in this way. When the liability order is in place, the paying parent will have 21 days to lodge an appeal with the court. They can do that entirely themselves; they do not need to come through the Child Maintenance Service. Once the appeal is lodged with the court, it is really up to the judge to take it forward. At that point, the judge will make a decision on how long it takes or what is involved with the appeal.

Ms K Armstrong: It is a judge, as opposed to the Appeals Service?

Ms Wylie: Yes. It is the courts.

The Chairperson (Mr Gildernew): In relation to the appeals, what is your latest thinking on the regulation-making powers regarding appeals? What is the likely period of time and how will it be assessed in terms of human rights compliance?

Mr Noble: Are you talking about the secondary legislation?

The Chairperson (Mr Gildernew): Yes.

Mr Noble: Once the Bill gains Royal Assent, we will bring forward secondary legislation, which then will set the policy around the repeals process and how it will work. That will take account of the consultation responses and any other information that we have available to us. Further work will be done on that in the Department. Obviously, as it is secondary legislation, we will brief the Committee at a further stage on how the mechanics of that will work.

The Chairperson (Mr Gildernew): So, there are no Henry VIII powers in that sense; there is nothing here that is not going to come back for —.

Mr Noble: Not that I am aware of, no.

The Chairperson (Mr Gildernew): The report concluded on 29 September. There were only 13 responses, and you have gone through them fairly comprehensively. How come the analysis has not already been done? When can we see the full analysis?

Mr Noble: We have a considerable amount of work ongoing in this area. Obviously, we are working with DWP on the other consultation that closed around the same time and which, I think, was referenced in the previous session. It is a time factor due to the volume of work at the moment. This is our analysis, and, obviously, we will put that into a written report.

The Chairperson (Mr Gildernew): On a related theme, what is your assessment of the readiness of the court system and its staffing and resources to manage the new system?

Mr Noble: We have had engagement with our colleagues in the Courts and Tribunals Service.

Ms Wylie: The courts are aware of what is coming. Obviously, it is hard to predict at this stage how many appeals there might be, but we have fully engaged with them, and they are aware of what the requirements will be. They are content that they are ready.

Mr Noble: I stress that that engagement will continue as we get to the stage of the secondary legislation, which will get into more detail on appeals.

The Chairperson (Mr Gildernew): Have you an update on the anticipated staffing or resource that that will involve?

Ms Wylie: It is not expected that this will make a big impact on staffing levels in the CMS. The staff who currently deal with the administration of the court-based liability order will move across to deal with the administrative orders. It is not expected to make a big impact.

The Chairperson (Mr Gildernew): OK. One issue that I have raised a couple of times is around the cross-border enforceability of it and how it will operate on a cross-border basis. What is your understanding of any implications, positive or negative, in that respect?

Ms Wylie: Several countries have a reciprocal enforcement of maintenance order agreement, and the courts in those countries can enforce child maintenance decisions that are made here. This administrative liability order will have the same powers, within that, as the court-based order. Therefore, there will not be any change to the current arrangements.

The Chairperson (Mr Gildernew): My final question is on the impact on the victims of domestic abuse and domestic violence. Is there any possibility that the appeals process could be used to frustrate a solution or the parent who is entitled to a payment?

Ms Wylie: I get what you are saying. A paying parent has to be given the right to appeal, so you have to balance any chance of frustrating payment with their right to be heard. There is a set time frame around how long it takes to lodge the appeal, and once the appeal is lodged, it is over to the judge to decide how long the process takes. It is not within the paying parent's control at that point, so their ability to frustrate is restricted.

The Chairperson (Mr Gildernew): Briefly, are there likely to be any technical amendments made or considered by the Department as we go into Consideration Stage?

Ms Wylie: Not that we are aware of, no.

Ms K Armstrong: I appreciate that there will be a secondary stage, but I wonder what the consultees came back with regarding the seven-day period. Is that seven working days, or does it include weekends and holidays?

Ms Wylie: I think that it is seven working days.

Ms K Armstrong: So, if, for instance, it was over a holiday period — Christmas or something — that should not interfere with the process.

One of the things that have been brought up with us is Dr Samantha Callan's independent review. I assume that it will be the secondary legislation that will define how direct payments and such things will be handled for domestic violence victims.

Mr Noble: As I mentioned earlier, there was another consultation around direct pay and collect and pay. It was led by DWP, although its scope extended to Northern Ireland. That consultation has just closed as well. We are engaging with DWP on that consultation. That will cover some of the issues around domestic abuse. Once we have the analysis of that consultation, we will be happy to come back and brief the Committee on it.

The Chairperson (Mr Gildernew): Are there any other questions for officials? Go ahead, Ciara; I will come back to you, Kellie.

Ms Ferguson: Do you want to carry on, Kellie?

Ms K Armstrong: No, go on ahead, Ciara; you might ask what I was going to ask, anyway.

Ms Ferguson: I have a couple of questions. You mentioned the online stakeholder engagement session that was held on 17 July. I would like to know a wee bit more detail on that, because I am always concerned about the level of response to consultations.

Mr Noble: There were two organisations.

Ms Ferguson: Can you name them?

Mr Noble: Yes. Advice NI and Children in Northern Ireland.

Ms Ferguson: What did that entail? Did you make a call out to a range of organisations and only two came back?

Mr Noble: Yes. When we do a public consultation, we send out invitations to all the relevant organisations across Northern Ireland and invite them to a stakeholder engagement event. We decide whether it will be in person or online; in that case, we went for an online one. Two organisations attended that. At the session, we outlined the proposals in the consultation document and fielded questions from the organisations. We then invited them to respond to the consultation document.

Ms Ferguson: Do you have a time frame for the publication of the report?

Mr Noble: We hope to get it published as quickly as possible. We are encountering a significant amount of work at the moment, but I hope that we will get it out in due course. I am happy to come back to the Committee, if you wish, when that report is published.

The Chairperson (Mr Gildernew): We have a considerable amount of work as well, but we have a duty to scrutinise the legislation, so we need the information.

Ms Ferguson: In the responses to date, what stood out for me was the word "suicide". You have a small number of responses, and one of the key ones was about the impact that it could have, which was suicide. That one response is critical and should be taken into consideration. Given the way it works, through direct pay and collect and pay, you want to see this as being a last resort. Anyone who is going through quite a vulnerable period in life, whether that is through separation, missing kids etc, can become quite vulnerable all of a sudden. They can frustrate the system in the sense of direct pay and collect and pay, and, all of a sudden, the word "legal" can really tip people. Is there any protection in there — maybe there is, and I just have not read it — regarding how, once it is in its implementation stage, you inform and educate people so that they are fully aware of what the last resort is and what it means in practice?

Mr Noble: The proposals are a last resort. Our advice to anybody is to engage with the Child Maintenance Service as soon as possible at any stage of the process. That engagement is crucial, because the staff can help. I assume that they would receive lots of support from the Child Maintenance Service.

Ms Wylie: The most important thing is that that is the last stage. In every notification that they will have had right up to that point, they will have been encouraged to engage with and talk to us. We can sort it out at any point. Even after the liability order is in place, you can still engage and come to an agreement.

All our staff are trained to be suicide-aware, and aware of mental health issues in general. If a customer mentions their mental health or that they are struggling in any way, we signpost them to other organisations that can provide support with whatever difficulty they are having, whether it is financial, family issues or whatever. We have a direct call transfer with Lifeline so that, if somebody is in need of immediate intervention, we can transfer the call straight to Lifeline so that they get it. It is something that we are very aware of. We try to make all of our caseworkers very aware of it.

Ms Ferguson: Thank you for that.

I will ask a final question out of nosiness. I know that HMRC calculates it, but what is the calculation? What is used?

Ms Wylie: We use a percentage of gross income. It is pulled across from the HMRC interface. There will be different circumstances for every case. Shared care could be considered in that calculation, or there may be relevant other children in a paying parent's house who are considered. There are variations that we will consider. I can give you a full written explanation of what is involved.

Ms Ferguson: That would be useful for our understanding as this progresses. Thank you very much.

Ms K Armstrong: I want to ask about the new fee structure. It appears that, if you are a paying parent and you are paying regularly and on time, that will be reduced. Is my understanding correct?

Mr Noble: Yes, a different fees mechanism is outlined in the proposed consultation document.

Ms K Armstrong: We have been given information that states that, if the non-compliant paying parents do not pay their maintenance liability in full or on time, they would be put on to the 20% fee bracket. At this stage, do you have any idea what the non-compliance threshold is? Is it one missed payment or two missed payments? How does it work?

Ms Wylie: There would not be a particular threshold. You would be talking about quite a substantial period of time. We would have gone through a lot of stages before getting to the point where we say that there is non-compliance.
The other thing to bear in mind is that the majority of cases that make it that far involve self-employed people. If someone is employed, we will have been able to deduct money from their wages at source. The majority of cases that make it that far are of people who have been able to frustrate the system because they are not employed. It is a small percentage of our caseload — 2·5%, I think — that makes it that far.

Ms K Armstrong: Will the new administration liability order incur any further costs? I suppose it is hard to say at this stage. Will the fee structure cover that?

Ms Wylie: Do you mean for the paying parent?

Ms K Armstrong: Yes.

Ms Wylie: Yes, the fees for the new admin order will be the same as those for the court-based one.

Ms K Armstrong: I did not see anything in the proposed legislation to suggest that there would be a review period or anything for the fees. Are there plans to include anything about that in secondary legislation?

Mr Noble: At this stage, we have not got into that detail. The fees side would be included in secondary legislation. If I am correct, the fee is the court fee —

Ms Wylie: Yes.

Mr Noble: — which is outside the scope of a fee that would be set by the Department.

Ms K Armstrong: OK. Thank you.

The Chairperson (Mr Gildernew): Those are all the members' questions for John and Sinead. Thank you very much for your briefing. We look forward to getting that report as a soon as possible.