Child Maintenance Liability Order Hearings: Why “The Calculation Is Wrong” Usually Fails — and What to Say If Your Appeal Is Live
Introduction
If you are facing a child maintenance liability order hearing, it is easy to assume the court will listen to everything from the beginning and decide whether the Child Maintenance Service calculation was fair.
In most cases, that is not what this hearing is for.
Under section 33 of the Child Support Act 1991, the court’s role is usually much narrower. In a liability order hearing, the magistrates are generally concerned with whether the payments became payable and were not paid. The court is not normally there to recalculate the maintenance or decide whether the original calculation was too high. This article focuses on magistrates’ court liability order hearings in England and Wales. There may be differences in Scotland or Northern Ireland.
That point was made very clearly by the House of Lords in Farley v Child Support Agency / Secretary of State for Work and Pensions 2006 UKHL 31, which remains one of the key authorities in this area. Lord Nicholls explained that, on a section 33 application, the magistrates must proceed on the basis that the maintenance calculation was lawfully made, and their function is limited to checking that the assessment relates to the defendant and that the payments became payable and were not paid.
What the court is actually deciding
Section 33(3) says the court must make a liability order if it is satisfied that the payments in question became payable by the liable person and have not been paid. Section 33(4) then says the court must not question the maintenance calculation under which those payments fell to be made.
In plain English, that means this hearing is usually about enforcement, not about whether CMS got the number wrong in the first place. If your real complaint is that the calculation is wrong, the usual route is to challenge the decision through mandatory reconsideration and, if necessary, an appeal to the Social Security and Child Support Tribunal. GOV.UK says you normally ask for mandatory reconsideration within 30 days of the decision letter, and if you are still unhappy after that, you can appeal to the tribunal within one month of the reconsideration outcome.
Why admitting non-payment can effectively seal the liability order
This is the mistake many people make.
They go to court and say something like:
“Yes, I did not pay, but that is because the amount was too high.”
That often does not help. In fact, it can hand the court the two findings it needs: that the amount became payable and that it was not paid. Once that is established, section 33(4) usually prevents the magistrates from reopening the calculation itself at that hearing.
So, saying “I didn’t pay because it was too much” or "I didnt pay because ...."is usually not a defence to the liability order. It may explain why you did not pay, but it does not usually answer the legal question the court is being asked to decide.
Why the Farley case matters so much
Farley is the case that judges and CMS representatives often rely on because it draws a very firm line between:
- challenging the calculation, and
- enforcing unpaid maintenance.
The case was decided by the House of Lords before the Child Maintenance Service was created, on 28 June 2006. Lord Nicholls gave the leading judgment, and the other Law Lords agreed.
The important parts are these:
Paragraph 16
Lord Nicholls said that on a liability order application the magistrates must proceed on the basis that the maintenance assessment was lawfully and properly made, and that the court is precluded from questioning any aspect of the assessment. He then said the court’s function is to check that the assessment relates to the defendant and that the payments became payable and were not paid.
The court is the check and balance. Was a payment due, was it paid?
Paragraph 32
Lord Nicholls concluded that section 33(4) prevents the justices from investigating whether the maintenance assessment or calculation is a nullity, and that such a challenge must be pursued through the statutory appeal structure instead.
In other words, if it isnt being appealed, then the liability hearing is not the place where a hearing will be held.
Paragraph 33
This is the part many defendants overlook. Lord Nicholls added that where an appeal against the validity of the underlying calculation is already pending, magistrates should consider whether it would be oppressive to make a liability order at that stage. If it would be oppressive, they should adjourn the hearing pending the outcome of the appeal or for such shorter period and on such terms as may be just. He said magistrates have that power under section 54 of the Magistrates’ Courts Act 1980.
That is why Farley matters to both sides. It helps CMS argue that the court cannot recalculate the maintenance at the liability order hearing. But it also helps a defendant who already has a live statutory challenge, because paragraph 33 supports an argument for adjournment where immediate enforcement would be oppressive.
In other words, if it is being appealed, than a liability order hearing must be adjourned to allow the appeal to take place. This is the reason why its important to attend a liability hearing if its disputed and being appealed elsewhere.
The practical point defendants need to understand
The hearing is usually not the place to say:
“The amount is wrong, so I should not have to pay.”
The stronger and more realistic position is:
“I understand this court is not deciding the validity of the underlying calculation today. My point is that the calculation is already under statutory review or appeal, and the court should consider whether it would be oppressive to make a liability order before that challenge is decided.”
That is a much better use of Farley.
A sample defence where the calculation is disputed and under review or appeal
Here is a suggested text that a paying parent may want to provide the judge.
Suggested wording for court
“I dispute the underlying child maintenance calculation. I am not asking this court to recalculate child maintenance at this liability order hearing. I recognise that under section 33(4) of the Child Support Act 1991, and as explained in Farley v Child Support Agency / Secretary of State for Work and Pensions [2006] UKHL 31, the magistrates’ court does not question the underlying maintenance calculation in these proceedings.
My case is that the calculation is already under statutory challenge by mandatory reconsideration / revision / appeal. In light of paragraph 33 of Farley, I ask the court to consider whether it would be oppressive to make a liability order before that challenge has been determined. If so, I ask the court to adjourn the hearing pending the outcome of that challenge.
I also ask the court to consider whether the statutory preconditions for a liability order have been satisfied, including proper notice under regulation 27 of the Child Support (Collection and Enforcement) Regulations 1992 and whether any part of the sum claimed is outside the six-year limit in regulation 28(2).”
This establishes that you are not asking the court to recalculate, but you are relying upon an appeal, thus meaning that the hearing needs to be adjurned.
Proper notice still matters
Even though the court cannot usually revisit the calculation, the enforcement process still has rules.
Under regulation 27, the Secretary of State must give the liable person at least 7 days’ notice of the intention to apply for a liability order. If the liable person is not resident in the United Kingdom, the minimum notice is 28 days. The notice must also set out the amount of child support maintenance said to be outstanding.
So if notice was late, missing, sent to the wrong place, or did not properly set out the amount being claimed, that can still be an issue worth raising. The court is not there to reconsider the original calculation, but it is still entitled to ask whether the statutory route to enforcement has been followed.
What the six-year rule means in real terms
This is one of the most important practical points.
Regulation 28(2) says that an application for a liability order may not be instituted more than 6 years after the day on which payment of the amount in question became due. The wording focuses on the amount in question, and on the date the application was instituted, not simply the hearing date.
So what if some of the arrears are more than six years old?
On the face of regulation 28(2), if part of the claimed arrears became due more than six years before the liability order application was started, that older part should not be included in that application. In other words, an amount that is outside the six-year limit is a serious point to challenge.
Does that wipe out the whole case automatically?
Not necessarily.
The safer way to explain it is this: it may prevent CMS from relying on the out-of-time part of the arrears in that liability order application, but it does not automatically mean every other, more recent arrears item disappears as well. This could require the hearing to be adjourned whilst the CMS correct the demand. If some arrears are still within time, CMS may still argue that a liability order should be made for those in-time sums. That is an inference from the wording of regulation 28(2), which refers to the “amount in question.”
Why this matters in court
If CMS is claiming one global figure, you should think about whether you need a proper breakdown showing:
- each missed payment,
- when it fell due,
- which sums are said to remain unpaid, and
- whether any part of that figure is older than six years from the date the application was instituted.
If any part is out of time, a defendant may want to say something along these lines:
“I ask the court to require the applicant to identify precisely which arrears are said to fall within regulation 28(2). To the extent any part of the amount claimed became due more than six years before the application was instituted, I say that part cannot properly be included in this liability order application.”
That is usually a better argument than making a general complaint that the figure “looks wrong”.
Frequently asked questions
Can I defend a liability order by saying the child maintenance calculation is unfair?
Usually, no. Section 33(4) and Farley make clear that the magistrates’ court does not normally decide whether the underlying calculation was right or wrong at the liability order hearing. That dispute usually belongs in the statutory reconsideration or appeal process.
If I admit I did not pay, have I basically lost?
You may have made the applicant’s job much easier. Section 33(3) focuses on whether the payments became payable and were not paid. If you openly accept both points and only argue that the amount felt too high, that is usually not a defence to the liability order itself.
What should I do if I think the calculation is wrong?
You should normally challenge the decision through mandatory reconsideration and, if necessary, appeal to the Social Security and Child Support Tribunal. GOV.UK says mandatory reconsideration should usually be requested within 30 days of the decision letter, and a tribunal appeal is usually brought within one month of the reconsideration outcome.
Can Farley help me as a defendant?
Yes. It is often quoted against defendants, but paragraph 33 can help where you already have a live appeal or other statutory challenge underway. In that situation, Farley says the magistrates should consider whether making a liability order would be oppressive and, if so, adjourn.
What if the notice was defective?
Regulation 27 still matters. The Secretary of State must usually give at least 7 days’ notice, or 28 days if you are outside the UK, and the notice should state the amount claimed. If the enforcement process did not follow the rules, that is a point worth raising.
What if some of the debt is over six years old?
That is potentially important. Regulation 28(2) says the liability order application may not be instituted more than 6 years after the day the amount in question became due. That means older arrears can be vulnerable to challenge. But it does not necessarily wipe out the whole application if there are newer arrears still within time.q
Final takeaway
For most people, the single most important point is this:
A liability order hearing is usually not the place to argue that the child maintenance calculation was simply too high.
If you stand up in court and say, “Yes, I didn’t pay, because the amount was too much,” you may be confirming the very facts CMS needs. The stronger approach is to understand the narrow role of the hearing, identify any real enforcement defects, and, if the calculation is already under statutory challenge, consider relying on Farley paragraph 33 to ask for an adjournment where enforcement would be oppressive.
Closing disclaimer
This article is a general explanation of the law and procedure and is aimed at readers in England and Wales dealing with child maintenance liability order hearings. It is not tailored legal advice. Child maintenance cases can turn on the exact dates, notices, payment history, application paperwork, and whether a statutory challenge is already underway. If you are facing a hearing, get advice on your own papers from a solicitor, law centre, or specialist adviser as soon as possible.
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