Magistrates rule CSA assessments can be overturned: Agency to challenge a ruling that could open floodgates for absent parents to challenge payments. Rosie Waterhouse reports

A LEGAL test case against the Child Support Agency has established that the controversial formula used to assess how much maintenance an absent parent must pay can be thrown out, if the assessment is not in the best interests of the children from first and second families.

The ruling by magistrates in Colchester last week could open the floodgates for absent parents to ask courts to overturn maintenance assessments made by the CSA. The decision has caused dismay at the highest levels of the CSA, which intends to challenge the decision in the High Court.

Roy Biggin, from Ardleigh near Colchester in Essex, who has two children from his first marriage, asked magistrates to overturn a Deduction from Earnings Order issued to his employers by the CSA after he refused to pay the pounds 80 a week maintenance assessed using the complex formula. He said the formula did not take into account all his financial circumstances and the assessment left him with so little money his children suffered.

Mr Biggin has a second family and helps provide for the two children of his new partner, Sue Boreham, whose ex- husband is dead and so cannot support them.

Mr Biggin, 39, a supervisor at Ardleigh reservoir, told the court the settlement meant one of his stepchildren was being hampered in her pursuit of a career as a social worker, but the whole family, including his children by the previous marriage, had been affected.

The CSA's solicitor argued that a magistrates' court did not have jurisdiction to examine CSA assessments, but the magistrates ruled that they did. The case could open the floodgates for every absent parents who has had a Deduction from Earnings Order to ask a magistrate to overturn the CSA's assessment.

Mr Biggin's solicitor, John Fellows, went on to argue that under section two of the Act, the CSA had to excercise its discretion and take into account the welfare of the children when deciding whether to make a Deduction from Earnings Order.

The magistrates agreed, so in principle, even if the agency staff have made an accurate assessment according to the letter of the formula, magistrates can re-examine an absent parent's financial circumstances and rule that it is too high and not in the best interests of the welfare of the children.

The court would take into account all the family circumstances including outgoings and expenses which the formula does not, such as debts, loans, the costs of travelling to work and seeing the children. The formula would in effect be thrown out.

However, the magistrates ruled that in Mr Biggin's case the child support officers did in fact exercise their discretion and consider the welfare of the children. They did not rule on whether the amount of the assessment was in the best interests of the children.

Susan Deas, a Liverpool solicitor who is fighting several CSA cases, said the magistrates' decision had 'enormous implications', especially for second families, which have been hardest hit since the agency took over maintenance assessments from the courts in April 1993.