A decision in the high court has upheld an argument made by Cait Reilly, that the DWP and the government have enacted unlawfully. After her initial victory, to the effect that the DWP was acting without sufficient statutory authority, the government introduced new legislation to fill the gap, and made it retrospective. The court in this decision held that it was incompatible with principles of human rights for governments to change the law affecting a litigant while legal processes were in progress. That decision is obviously right, but the DWP seems determined to expend the largest possible sum of taxpayers’ money challenging it. Do they have a budget for legal fees that has to be spent before the end of the financial year?
The most bizarre aspect of the DWP’s strategy is that it seems to offer claimants the possibility of legal redress that otherwise they wouldn’t get. The DWP has long operated a pernicious ‘anti test case rule’: if a court finds that the DWP has interpreted the law wrongly, no redress is offered to people who have been wronged. If the DWP had rescinded the initial decision that was made about Cait Reilly, it would have had no impact on other claimants; if they had not appealed the first case, they could have introduced the new regulations with no obligation to redressing the position of people who had lost out up to that point. But the Department seems determined to lose the argument with a spectacular implosion of Hollywood-style destructiveness. It would be no bad thing if they took the anti-test case rule down with them.