An important case has been decided against the Department for Work and Pensions, calling into question at least three long-standing, major elements in social security law. R v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin), which can be read here, concerns the operation of the relatively recent overpayments policy, which makes it possible for the DWP to reclaim overpaid benefit despite the fact that the claimant has done nothing wrong and may have had no reason to suppose that the payment was not legitimate. (This pernicious rule has, regrettably, been replicated in the Scottish Parliament’s recent law on social security.)
The first concerns the DWP’s use of discretion. For decades – at least since the 1960s – the DWP and its predecessors have limited its use of discretion by the development of national rules, intended to ensure that there is no inconsistency between judgments made in different parts of the country. (See M Hill, 1969, The exercise of discretion in the NAB, Public Administration, 47(1) 75‑90; J Bradshaw, 1981, From discretion to rules, in M Adler, S Asquith, Discretion and welfare, Heinemann.) The court, in this case, emphasised that notwithstanding that principle, the DWP always had a duty to make an individual assessment in the particular case that presented itself – explaining how its discretion would be exercised, rather than choosing not to exercise it.
The second element concerns the publication of guidance. Since 1980, when I started teaching welfare rights, I’ve visited social security offices irregularly – the last time was in 2019 – and like many old-timers in this field, I’ve been required to sign the Official Secrets Act, because (for example) publication of the fact that social security officers are sometimes asked to use screens with impossibly small print might threaten the security of the nation. The Supplementary Benefit rules were contained in a loose-leaf binder, and then a set of binders, called the A code, and that was superseded by even fatter guidance documents called the S manual, also treated as an official secret. This case cites a previous judgment, which says this, in terms:
It is axiomatic in modern government that a lawful policy is necessary if an executive discretion of the significance of the one now under consideration is to be exercised, as public law requires it to be exercised, consistently from case to case but adaptably to the facts of individual cases. If – as seems to be the situation here – such a policy has been formulated and is regularly used by officials, it is the antithesis of good government to keep it in a departmental drawer.
The third major point concerns the appeals procedure. The present procedure requires claimants to ask first for Mandatory Reconsideration, and then to appeal to a tribunal. After that, the claimant’s options have been held to be exhausted. This case makes it abolustely clear that this is not, and cannot be, the end of the road. A DWP official had written to the claimant:
“Regarding your request to have your overpayment waived, as I have stated previously the routes for you to challenge an overpayment with Universal Credit are Mandatory Reconsiderations and a tribunal following an upheld Mandatory Reconsideration. Neither myself or anyone working for Universal Credit can reconsider your overpayment as you have exhausted all appeal routes with us. The legislation you have quoted does not apply directly to the processes that we have here.”
That response is described here as ‘manifestly unlawful’ (para 73).
I regret that so few social security cases come to judicial review. If they did, I think it likely that other important rules – including the requirement to seek mandatory reconsideration and the imposition of sanctions without the possibility of a hearing – would also be found to be unlawful.