Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome Eleanor Murphy, who we have seen on many occasions. Eleanor, I invite you to brief the Committee on your paper before we move to questions that members may have.

Ms Eleanor Murphy (NIA Research Office): Before I begin a brief overview of the paper, there are two caveats. After I finished my paper, the Department released its consultation on the administrative liability orders and some proposals for the regulations. That is not reflected in the paper. I have asked a ream of questions in the paper that have been answered by the consultation paper. Secondly, the statistics I produced in the paper have since been updated by the Department. It publishes annual statistics on child maintenance.

To recap, it is a parity Bill. It corresponds to the Child Support (Enforcement) Act 2023, which applies to Great Britain and received Royal Assent in July 2023. The Northern Ireland Bill is short, with only two clauses and one schedule, and it is quite technical in nature. If enacted, it will replace the current court-based liability orders, which are made by the Magistrates' Court, with administrative liability orders, which will be made by DFC. It will also allow DFC to make regulations in respect of appeals against administrative liability orders — for example, the period in which appeals can be made and the powers of the court regarding appeals.

The rationale for the Bill, in a nutshell, is to speed up the process for liability orders. The current court process, according to the Department, takes about 22 weeks on average, and that is similar to what was found in Great Britain. The COVID pandemic has caused backlogs in the court system, and that has affected things like liability orders. It is hoped that the new administrative liability order process can be completed in six weeks, and that corresponds to what was found in Great Britain.

What are liability orders? The Child Maintenance Service (CMS) currently has a range of tools that it can use to get a child maintenance payment or arrears. For example, it can deduct a maintenance payment from the salary of the paying parent, or it can instruct a bank or building society to deduct those payments. However, if that does not work or it is not suitable, as a last resort, DFC can apply to a Magistrates' Court for a liability order. A liability order in itself does not do anything, but it is a legal recognition that the debt exists. Once the liability order is registered with the Enforcement of Judgments Office (EJO), it allows other things to take place; for example, the arrears can be gained through the sale proceeds of a house or if the paying parent has an interest in land or property. There is a range of tools that the Enforcement of Judgments Office can use.

Comparatively speaking, liability orders are not used that often. Departmental figures show that 218 liability orders were made in 2023-24. If you consider that there is a caseload of about 17,500 child maintenance cases, that number is relatively small.

It would be useful for the Committee to have a better understanding of the liability order process. You know what liability orders are, but behind that there is a decision-making process and an administrative process. If you understand that process better, you will understand the administrative liability process better, although there will be some changes to the appeals system. For example, the Committee might want to know what cases are suitable for a liability order application and what cases are not suitable. Is the paying parent given notice, and how much notice are they given? How can paying parents query or appeal a liability order? How can they appeal a maintenance calculation that, they think, is incorrect? Can they appeal against a liability order once it has been granted? What about circumstances in which a liability order can be discharged? To be fair, the Department addressed that in its consultation document.

I have come up with a number of scrutiny points that the Committee may wish to consider. One of those is to confirm with the Department that the processes behind the liability order process will not change substantially when it is converted to the administrative liability order process. As I said, however, the appeals process will change. In terms of post-legislative scrutiny, the Committee might consider asking the Department to provide it with an appropriate time post enactment when the administrative liability orders become operational — 12 months, for example. You may want to ask the Department to provide figures on how many administrative liability orders have been issued and some comparative figures with the previous year's liability order figures and an indication of how long the administrative liability process is taking compared with the old process. For example, is it taking six weeks to issue them? It might take a little while for it to bed down and for things to quicken up, because training and things like that would have to occur. The Committee may also wish to ask the Department for an assessment of how the new appeals process is working for the CMS and the paying parents. It might want to ask for a little information about the financial impact of the new arrangements — whether the new process has had staffing or resource implications — and just to give you an indication of that.

When looking at parity Bills, I usually look at the debates about and Committee examination of the equivalent Bill in Westminster to see whether MPs have identified anything strange or startling that you should know about. The good news is that they have not. The Bill received cross-party support at Westminster. A number of points were raised about child maintenance in general, however, and I will note those. There was recognition of the fact that the vast majority of separated parents can come to family-based arrangements without going through the CMS. Child maintenance is key to keeping children out of poverty, so any speeding up of the process to get arrears or payments would be welcome. As I said, the pandemic caused significant delays in the courts service, and MPs thought that administrative liability orders would speed the process up. Some concern was expressed about families who, for various reasons, did not have any maintenance arrangements in place, whether family-based or through the CMS, for extended periods. Those reasons could include domestic violence, where there is fear of approaching the CMS.

I looked at the Department for Work and Pensions (DWP) consultation, which is the equivalent of what departmental officials will talk to the Committee about, to see whether anything came out of that. DWP launched the public consultation on the GB legislation in October 2023. It had a relatively low response of 87. Considering that that includes England, Scotland and Wales, that is a low response rate. That may serve as a warning to the Committee that, despite your best efforts, you may not get a huge response. There was broad agreement —.

The Chairperson (Mr Gildernew): Were those broadly individual responses or responses from organisations? Do you have a sense of that?

Ms Murphy: I am not sure, Chair. I think that there was a mixture of both, but it was probably mainly large organisations that responded, and, perhaps, paying parents who objected to the change in the process.

The consultation found that there was broad agreement on the proposals. Some concerns were expressed regarding the notice for payment. The notice to make an administrative liability order would be seven days or 28 days if overseas, but DWP pointed out that those are the timescales that are currently in place, so that was not a major change. Some people asked whether time would be allowed for things such as postage delays. Some people suggested adding bereavement as a cause to discharge the administrative liability order. Some people were concerned about the consequences of administrative liability orders. For example, there was concern amongst people who had experienced domestic violence that some paying parents could use the system to frustrate it and perpetuate non-payment by repeatedly using the appeals process. To be fair, the purpose of the Bill is to speed up that process and prevent those long delays. The UK Government responded by saying that, for a lot of the issues being raised on timescales, those timescales mirrored processes that were already in place. For example, the new proposal is for 21 days to appeal an administrative liability order to the Magistrates' Court. They said that that is in keeping with the deduction orders. If a deduction order is made by DWP, the paying parent has 21 days to appeal, so the timescales really have not changed that much.

The last section of the paper is not directly related to the Bill. It refers to potential further reforms that you probably should be aware of. In May 2024, the UK Government issued a consultation paper containing significant proposals for reform to child maintenance. They really sought to encourage more parents to make family-based arrangements. The proposal was to end direct pay and to transfer people into either family-based arrangements or an enhanced collect-and-pay arrangement. That is a fairly significant change. Although child maintenance is devolved to Northern Ireland, if significant changes are made in GB, it could mean changes here. Bear in mind that that was under the Conservative Government; I am not sure of the new Labour Government's position. They are just things to consider. You may want to request information from the Department on discussions that it has had around that sort of issue.

Also within that proposal was a proposal to conduct a review of child maintenance calculations, which, again, is a significant development. You might want to consider asking the Department if there are any updates on that. Will there be a review in Northern Ireland, and will that review go ahead at all?

Also in that consultation was a concentration on services for victims of domestic abuse. That was an issue that you had raised in your initial considerations of the Bill. The Committee may want to consider asking the Department exactly what CMS services they have in place for victims and survivors of domestic abuse. The review also mentioned the Child Support Collection (Domestic Abuse) Act 2023, some of which seems to extend to Northern Ireland. You may want to consider asking the Department for a wee bit of further information on that, because it involves payment arrangements for victims and survivors of domestic abuse. That concludes that part.

The Chairperson (Mr Gildernew): Thank you, Eleanor. That is a comprehensive and enlightening look across. Thank you; I really appreciate it.

Two issues jump out at me. First, I take it that, given the strong support, any human rights issues around the right to appeal have been addressed to the satisfaction of a wide swathe of political opinions and sectors?

Ms Murphy: That did not come up, Chair, surprisingly. DWP may have done human rights compliance checks, but I am not sure of that. I could check for you.

The Chairperson (Mr Gildernew): Yes, please.

The other thing, which is possibly outside the scope of the Bill but is worthy of mention given our unique situation here, is around how this might be implemented cross-border or what the impact might be cross-border. It would be useful to know if there is any intention, negative impact or potential positive impact that we could derive as a result of the changes that could be considered now or in the future. I recognise the parity issue in that, if there are future changes, they may not fit in with this Bill, but they are areas for consideration.

Any other questions for Eleanor, members?

Mr Kingston: Thank you for the presentation. Just for assurance, is the robustness of the orders just as strong? Did you compare it with what was happening in England? Does the liability order still go through court as currently? Is it legislatively as strong in enforcing payments?

Ms Murphy: Yes, because it is a legal recognition, as far as I am aware, that the debt exists. That enables it to be taken to the Enforcement of Judgments Office. You would probably be better to ask that question of the departmental experts.

Mr Kingston: It is just that, when we are streamlining the process, it will be as effective and strong if there is an attempt to avoid a payment.

Ms Murphy: It seems that it would be equivalent to the court-based liability orders, which have similar power, from what I can gather. It would probably be best to go through that with the departmental officials.

The Chairperson (Mr Gildernew): We have officials coming immediately following these two briefings from Eleanor.

Ms K Armstrong: Your report mentions the Callan independent review at Westminster: what were the highlights of its findings?

Ms Murphy: I did not have time to go through that in depth, because I was concentrating on the Bill, so I just posed the question whether you could ask the Department about the Callan review and whether it had considered that or had accepted any of its recommendations or changed any processes.

Ms K Armstrong: Will do, yes.

Ms Mulholland: Thank you so much, Eleanor, for your report. I just want to check something that I brought up. I remember that the Minister said that it was not within the scope of the Bill, but I just want a bit of clarity. The fees for putting in place a direct pay — I would really like to see those waived in respect of victims of domestic violence. Is that within the scope of this, or is that more to do with the Child Support Collection (Domestic Abuse) Act 2023 and the provisions that might be extended to Northern Ireland?

Ms Murphy: That is part of the 2023 Act. Again, I do not know a lot about that. I do not want to push everything on to the departmental officials, but that is their bread and butter, and they would probably know that better than I would.

The Chairperson (Mr Gildernew): Again, this could be similarly be for the officials, and I am conscious that they are coming. Your paper says:

Does that suggestion involve any kind of Henry VIII powers, or are those all straightforward in the sense that the changes are contained in the Bill?

Ms Murphy: I am not sure. That is a technical legal question, which is not within my remit.

The Chairperson (Mr Gildernew): Fair enough. Are there any more questions for Eleanor before we move to the next briefing? No.

Thanks a million, Eleanor, that is very helpful.