Thread Rating:
  • 0 Vote(s) - 0 Average
  • 1
  • 2
  • 3
  • 4
  • 5
CMS Appeal - Tribunal
#1
Hello All,

Does anyone have experience of taking the CMS/DWP to tribunal and if so, what were your reasons for appeal? 

I now have a 50:50 CAO from the court, however, ex is still enforcing CMS against me on the basis that he does not spend as many nights with me. The CMS have sided with her despite my demonstrating otherwise.

My argument is that the day-to-day care of son is equal and there is no non-resident parent applicable. The order itself literally states that son lives with both parents so why would I need to pay.

I'm completing the appeal form now - any advice or tips anyone has would be helpful!

Thanks,
Reply
#2
If the order states 50/50 I would assume that you can send a copy of the order in and that should really be it......
The opinions here are not that of Separated Dads, but merely a loving father who has been through the process and has come out the other side.
Reply
#3
Yes I have been to tribunal for the exact same thing, same circumstances, and won. It isn't quite as simple as just sending in the order (although obviously you'll want to provide evidence of it). You'll want to state what your day to day care arrangements are, and why you have equal shared care. You'll want to state what a typical day is like, what hobbies you support, doctors, dentists, haircuts, school trips, clothes, what you do for holidays, what you did during COVID lockdown etc. Just remember that the judge will be looking at "day-to-day care", which might not be identical to overnights.

You'll also want to state clearly that your appeal is based on Regulation 50 of the Child Support Maintenance Calculation Regulations:

Parent treated as a non-resident parent in shared care cases

50.—(1) Where the circumstances of a case are that—

(a) an application is made by a person with care under section 4 of the 1991 Act(1); and

(b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant,

the case is to be treated as a special case for the purposes of the 1991 Act.

(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant.

(3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.

-----------------------------------------------------------------------------------------------------
By the way, after I won - guess what - the mother refused to (couldn't?) pay me back a penny of what the CMS had incorrectly ruled I had to pay her and I basically had to write it off. And it took 19 months to get through tribunal... yep.
Reply
#4
(04-21-2021, 06:11 PM)yetanotherone Wrote: Yes I have been to tribunal for the exact same thing, same circumstances, and won. It isn't quite as simple as just sending in the order (although obviously you'll want to provide evidence of it). You'll want to state what your day to day care arrangements are, and why you have equal shared care. You'll want to state what a typical day is like, what hobbies you support, doctors, dentists, haircuts, school trips, clothes, what you do for holidays, what you did during COVID lockdown etc. Just remember that the judge will be looking at "day-to-day care", which might not be identical to overnights.

You'll also want to state clearly that your appeal is based on Regulation 50 of the Child Support Maintenance Calculation Regulations:

Parent treated as a non-resident parent in shared care cases

50.—(1) Where the circumstances of a case are that—

(a) an application is made by a person with care under section 4 of the 1991 Act(1); and

(b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant,

the case is to be treated as a special case for the purposes of the 1991 Act.

(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant.

(3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.

-----------------------------------------------------------------------------------------------------
By the way, after I won - guess what - the mother refused to (couldn't?) pay me back a penny of what the CMS had incorrectly ruled I had to pay her and I basically had to write it off. And it took 19 months to get through tribunal... yep.

Hi - yes I have now submitted my appeal after constant arguing with the CMS. The peculiar thing is they confirmed previously that they would apply equal shared care to the case and yet now they have gone back on it. I suspect that my ex has made up a load of lies to tell them which has made this happen. 

CMS have now issued a DEO to my employer but my employer are wanting to argue against it, using the court order as evidence - is this a good idea? They know my ex rather personally and so are not the biggest fans of her. They don't want to pay.

How long does a tribunal take? I'd love to have this wrapped up as soon as possible.

Thanks
Reply
#5
(05-25-2021, 10:25 AM)MarisDad Wrote:
(04-21-2021, 06:11 PM)yetanotherone Wrote: Yes I have been to tribunal for the exact same thing, same circumstances, and won. It isn't quite as simple as just sending in the order (although obviously you'll want to provide evidence of it). You'll want to state what your day to day care arrangements are, and why you have equal shared care. You'll want to state what a typical day is like, what hobbies you support, doctors, dentists, haircuts, school trips, clothes, what you do for holidays, what you did during COVID lockdown etc. Just remember that the judge will be looking at "day-to-day care", which might not be identical to overnights.

You'll also want to state clearly that your appeal is based on Regulation 50 of the Child Support Maintenance Calculation Regulations:

Parent treated as a non-resident parent in shared care cases

50.—(1) Where the circumstances of a case are that—

(a) an application is made by a person with care under section 4 of the 1991 Act(1); and

(b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant,

the case is to be treated as a special case for the purposes of the 1991 Act.

(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant.

(3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.

-----------------------------------------------------------------------------------------------------
By the way, after I won - guess what - the mother refused to (couldn't?) pay me back a penny of what the CMS had incorrectly ruled I had to pay her and I basically had to write it off. And it took 19 months to get through tribunal... yep.

Hi - yes I have now submitted my appeal after constant arguing with the CMS. The peculiar thing is they confirmed previously that they would apply equal shared care to the case and yet now they have gone back on it. I suspect that my ex has made up a load of lies to tell them which has made this happen. 

CMS have now issued a DEO to my employer but my employer are wanting to argue against it, using the court order as evidence - is this a good idea? They know my ex rather personally and so are not the biggest fans of her. They don't want to pay.

How long does a tribunal take? I'd love to have this wrapped up as soon as possible.

Thanks

I don't know about DEOs sorry - in my case I was directly paying the mother. I think it might not be a bad idea to have payments via "collect and pay" even if a 20% fee is applied in this circumstance, as I think it puts the CMS on the hook to refund you if you win the tribunal (I'm not certain on this though - it is worth your while researching this). I don't think your employer has the legal power to argue against the DEO (and might be fined if they refuse to comply), but I don't know the specific rules behind it. As mentioned in my first post, the mother didn't repay any of the money to me that she technically owed me, the CMS won't do anything, and it looked like the only recourse to getting it back was to go via a small claims court - so I wrote it off despite it being several thousand pounds as I didn't see a realistic prospect of getting it back.

It took ages in my case to get to the tribunal as the mother didn't turn up for the first, due to CMS incompetence which I don't want to go into. Once you get a venue assigned for your tribunal, the best thing to do is to ring up HMCTS to ask what the current wait time is for the court, as they will have a view into the schedule. However, don't expect a fast hearing - 30 weeks plus in my experience. I can't remember the exact order, but you will get an official response from the CMS prior to the tribunal giving their view on the case (in my case they claimed it was "finely balanced", without giving evidence as to what formed that view) as part of a bundle that will be sent out to both parties.
Reply


Possibly Related Threads...
Thread Author Replies Views Last Post
  Appeal Hearing for Finances closebut.... 1 2,415 10-04-2018, 10:59 AM
Last Post: mrbungle
  CMS Appeal Success Rate? BlueShadows78 2 3,662 04-13-2018, 11:43 AM
Last Post: FlogginAdeadHorse
  CMS Tribunal when Care is Equal/Shared boyce57 3 4,967 12-05-2017, 10:12 AM
Last Post: boyce57
  Archived CSA Tribunal Cases; FTT + UTT Bartlebobton 1 4,092 09-29-2016, 05:45 PM
Last Post: MarkR



Users browsing this thread: 1 Guest(s)