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Family Law

The leading authority on all aspects of family law

21 DEC 2007

Prof Nick Wikeley: The strange demise of the liable relative rule

Nick Wikeley Professor of Law, School of Law, University of Southampton

The Government's plans to reform the child support system, having successfully navigated the Commons, are now before the House of Lords in the guise of the Child Maintenance and Other Payments Bill. This Bill in large part implements the proposals of the Henshaw Report (Department for Work and Pensions (DWP), Recovering Child Support: Routes to Responsibility, Cm 6894 (2006)) and the Government's subsequent White Paper (DWP, A New System of Child Maintenance, Cm 6979 (2006)). The main contours of these changes are well known: the abolition of the Child Support Agency (CSA) and its replacement by a new 'leaner and meaner' Child Maintenance and Enforcement Commission (C-MEC); greater emphasis on encouraging private agreements for child maintenance; reliance on historic income tax data for the purpose of making assessments; and, inevitably, increased enforcement powers.

One change that has received widespread support has been the radical decision to abolish the statutory requirement that income support claimants must apply for child maintenance (see cl 15 of the 2007 Bill, which will repeal s 6 of the Child Support Act 1991). In fact it was only in its original format that s 6 required parents with care in receipt of income support (and later income-based jobseeker's allowance) to apply to the CSA. Since its amendment in March 2003 by the Child Support, Pensions and Social Security Act 2000, s 6 has gone even further. At present a claim for one of these benefits automatically triggers an application to the CSA unless the parent with care actively opts out (in which event, as before, she may face a benefit penalty).

The repeal of s 6 is one consequence of the emphasis under the new post-Henshaw arrangements on private ordering. Parents with care on benefit are thus to be given the same choice as private clients in terms of their child support options. The benefit penalty will therefore disappear. From an organisational point of view, these changes should help to make the new agency's caseload more manageable. However, it remains unclear how many parents with care on benefit will actually 'go private'. Early indications are that a substantial number will prefer to remain with the CSA or C-MEC a case of better the devil of the agency you know than the deep blue sea of private ordering, with its uncertain currents.

However, the focus of this article is the proposed and associated repeal of a longstanding provision in social security legislation, a change that has been portrayed by Government as an inevitable consequence of the abolition of the s 6 trigger. This provision concerns the public law duty of maintenance, currently enshrined in s 105 of the Social Security Administration Act 1992, the origins of which can be traced back to the Poor Relief Act of 1601. For the full article, see January [2008] Family Law journal.

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