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THE SECRETARY of State for Social Security Peter Lilley has confirmed his ability to use discretion in deciding whether or not to enforce child maintenance orders after a Birmingham law firm won leave to seek judicial review of the Child Support Act's discretion rules.
The firm, DH Walton, received a letter from the Secretary's head of litigation Charles Blake on 12 September saying he would review the decision to enforce an assessment order made against absent parent Michael McGuinness, who was directed by the Child Support Agency to pay more than u43 a week for the maintenance of his 16-year-old son.
McGuinness, who also has three children from another relationship, claims he is unable to afford the payment which amounts to only u2 less than the total sum allocated by the CSA for the care of his other children.
McGuinness' legal representative, solicitors' clerk Bob Firkins, had sought to have the decision judicially reviewed after receiving a letter from the CSA earlier this year saying that there was no discretion available in the enforcement of orders.
However, McGuinness - the first person to win the right to a judicial review of discretion - dropped the case after the Secretary agreed to review it.
Firkins says the case is "the first real challenge to the rigidity of the formula used in the act".
"What it means, in effect, is that once people get the assessment it isn't necessarily the end," says Firkins.
"They can apply to the Secretary of State to exercise his discretion."
However, Blake says although the ability to use discretion has never been disputed by his office, only "exceptional" cases would warrant a review.
"If you exercise discretion in every single case you drive a hole through the middle of the act," says Blake.
"We will always look at exceptional cases, but clearly no-one should think that they will have an assessment and then it will never be enforced."