The welfare state: a communitarian perspective

Today I gave a plenary paper to a conference of  the Wales Institute of Social and Economic Research and Data, under the title of The welfare state: a communitarian perspective.  The conference brought together Welsh academics and researchers with practitioners from the voluntary sector.  Here is the abstract:

Communitarianism is not, as some critics imagine, an argument for the dominance of the community over the individual. It begins from the view that our rights, responsibilities and moral understandings are rooted in the society of which we are part; these phenomena are socially constructed, relative, contingent and particular. A society is not a single ‘thing’: it is a network of networks, depending on a mesh of interactions, exchanges and obligations. Welfare provision has developed from the networks, duties and conventions which bind a society together.
       The welfare state is commonly understood in three ways: as provision by government, as a complex set of systems for social protection, and as a normative ideal. This presentation will argue for a fourth understanding. The welfare state is a way of describing a set of normative aspirations. These aspirations are sometimes thought of as universal, but all welfare states apply principles of ‘bounded solidarity’; the terms of the welfare state depend, like ideas of equality, social justice, or democracy, on the context of the society in which they are applied. The ‘welfare state’ is a direction of travel, not a destination.

The paper is online here, on my access page.

Misunderstanding socialism (again)

An article in the Daily Telegraph by Priti Patel, a former Home Secretary, has been given a preposterous headline: Britain can still escape the OECD’s radical plan for permanent worldwide socialism.  What she’s actually writing about is a proposal for to level the playing field in relation to Corporation Tax.  I think it’s likely that the identification of this proposal with ‘socialism’ has been made by a Telegraph sub-editor – I’m sure that Patel would be more eager to get us to engage with her argument. I’m not going to do that, but I am concerned about the lazy insult, and I want to clarify two things about the terminology.

The first is the supposition that state regulation or ‘intervention’ is a form of socialism, implicitly opposed to the operation of free markets.  By this test, just about every country in the world would be ‘socialist’.  There isn’t a government anywhere that doesn’t have some form of expenditure on health education.  Nearly all (just not quite all) spend on education.  Something like three quarters of all countries now have some kind of national scheme for cash benefits.  This isn’t  worldwide socialism – it’s just what contemporary states do.  Grown-up politics needs to be concerned with how policies like this work.

The second misconception concerns the nature of socialism.   Wikipedia  reflects a common confusion when it writes that ‘socialism refers to economic and social systems which are characterised by social ownership of the means of production … social ownership is the one common element’.  This is plainly wrong. Social ownership is not necessarily socialist (roads? parks?) and many socialists are concerned less with ownership than with public welfare.

The terminology used in the Wikpedia article is marxist, once dominant but now at best a minor branch of socialism. Marxists  like to claim that their beliefs are the only real and true form of socialism, ignoring the simple fact that socialism developed some time before marxism and the political movements parted company about a hundred years ago.  Right-wingers (such as Kristian Niemitz, writing for the IEA) also like to think that ‘socialism’ means the same thing as ‘communism’.   It doesn’t: that’s why we have different words for the two.

Socialism is complicated, but here is a short summary from my website:

There are many forms of socialism. The main models, which can be found in various permutations, include representations of socialism as

  • a movement for the improvement of society by collective action (for example, in Fabianism)
  • a set of methods and approaches linked with collective action, such as cooperatives, mutual aid, planning and social welfare services (e.g. the co-operative movement);
  • a set of arguments for social and economic organisation based on ownership and control by the community (e.g. in syndicalism, guild socialism and anarchism)
  • an ideal model of society based on cooperation and equality (e.g. Owenism and utopian socialism);
  • a critique of industrial society, opposing selfish individualism (e.g. Christian socialism), and
  • a range of values, rather than a particular view of how society works (e.g. the position of the Parti Socialiste Européen in the European Union).


A just society? Rawls is not the way

An article in today’s Guardian argues that the philosophy of John Rawls offers “a “realistic utopia” that provides the basis for a broad-based and genuinely transformative progressive politics.”  I don’t share that view.  Rawls makes a case for some of the key values dominant in American liberal politics, but falls far short of encapsulating progressive values.

The first weak point in Rawls’ approach rests in his appeal to the idea of a social contract – that what reasonable, moral people will agree to offers us a model of fairness and justice.  Reasonable people may well agree to lots of things.  Sometimes they will opt for things that have good consequences – what is good.  Sometimes they will choose what is right. He thinks they will agree to principles of individual freedom and a degree of useful inequality. Perhaps they will, perhaps they won’t; but whatever they do agree to, ‘justice’ is not the same thing.

This might come over as a quibble about language, but it’s been fatal to most attempts to form a picture of a ‘just’ society.  Consider, for example, the fate of the Commission on Social Justice in the 1990s.  They ended up with a political manifesto covering everything they could.  If justice means everything, it means nothing.

The second weak point concerns Rawls’ ‘difference principle’: that people should accept a degree of inequality on the basis that it leads to more for everyone.  This reflects the influence of the ‘Pareto principle’ adopted by many economists.  That approach fails to understand that inequality is intrinsically exclusive: that where inequalities occur, people with resources are able to outbid and so to exclude others from the benefits that they claim with those resources.

The third weakness lies in the construction of ‘justice’ and ‘fairness’.  These are not end-states, and cannot be understood in those terms: they are principles, and the pursuit of either is a continuing process.   The point, I have argued in other work, is ‘not to eliminate every conceivable injustice at one blow, but to ensure that each step makes the situation more just than it was before.’

That leads me to one of the strongest objections to Rawls’ vision: that there is no route from where we are to where he wants us to be.  The plea for a ‘realistic utopia’ is not just an oxymoron: it is an impossibility.  In The future of socialism, Tony Crosland made a devastating critique of utopian politics.  Every change we make alters the picture; it means, it must mean, that the conditions which have to be addressed will no longer be the same as they were before.

My submission to the Work and Pensions Committee on the adequacy of benefits

The Work and Pensions Committee has issued a call for evidence about benefit levels in the UK.  My response to that call is here in a PDF or on the Committee’s website here.

There are some common confusions in the discussion of adequacy, which this submission seeks to clarify.

  • The purposes and functions of benefits are complex.
  • The adequacy of benefits depends on how they work in combination with each other, and with other sources of income.
  • Benefits have not been set at a level that reflects the costs of subsistence.
    Universal Credit in particular is not designed to provide a basic minimum
    income and does not do so.
  • Most benefits are designed to be delivered regardless of work status. The
    emphasis on the centrality of work is a major distortion of their role and
  • The operation of the benefits system is frequently penal and fails to provide
    adequate avenues of redress.
  • Assessments of people’s  financial position which attempt to identify all possible income streams and household circumstances are unavoidably complex, difficult to administer and liable to error. The alternative is to offer a range of less comprehensive benefits which can be combined in different ways.

The proposed abolition of benefits for long-term sickness is staggeringly stupid.

When I posted about the reform of the Work Capacity Assessment before, I had no idea that what was being contemplated was an abolition of benefit for  long-term sickness.  That, however, appears to be what the government actually intends to do.  They are so fixated on disability that they have forgotten what sickness benefits are supposed to do.

The Beveridge reform included, initially, only a Sickness Benefit.  This wasn’t enough, and in 1971 a longer-term benefit called Invalidity Benefit was introduced, largely to cope with people who otherwise would have to make demands of the system for unemployment.  Subsequent changes gave us Incapacity Benefit, then Employment and Support Allowance, now being swallowed by Universal Credit.  It’s already the case that benefits for people who are ill are now set at the same level as benefits for people who are unemployed.  The difference rests in the situation of people who have ‘limited capacity for work related activity’ or LCWRA – people who (in the terms of the 2012 Welfare Reform Act) it is not reasonable to expect to work. Those people are largely exempt from the requirement to be actively seeking work.

Transforming Support, the White Paper on Health and Disability, has been published at the same time as the 2023 Budget.   The bulk of the White Paper is taken up, unexceptionably, with the situation of people with disabilities, and how they might be supported into work.  The problem is, straightforwardly, that sickness benefits are supposed to do something quite different.  They are there to support people who are sick.  The government, it seems, is incapable of making the distinction. Most people who are sick are not disabled.  Many people who live with disabilities are not ill.  There are conditions which overlap, but these are different circumstances calling for a different approach.  I’ve explained the difference between sickness and disability benefits in my previous work; here is a quick summary.

Benefits for people with disabilities people are given on a number of principles.

  1. Compensation for disability. Industrial disablement or action in the courts assume that people should be paid if something unpleasant happens to them. This does not extend to those who simply become ill or to those born with disabilities.
  2. Special needs. Allowances can be made for example for personal care, transport, and medical goods.
  3. Desert. In some cases compensation depends on a moral evaluation of the
    reason for disability. War pensions are the obvious example.
  4. The protection of carers. People caring for a disabled person may be limited in their capacity to seek work and to earn.
  5. Rehabilitation. Benefits may be concerned to change the status of the disabled person – for example, through training or the provision of special equipment.
  6. Promoting employment. A number of benefits are geared specifically to the promotion of employment for disabled people, as a desirable end in itself. They do so principally by altering the calculation of costs and benefits made by disabled people or by employers.
  7. Improving low income. Low income may reflect incapacity or disadvantage in the labour market. Many disabled people on low incomes rely on forms of social assistance benefits, for others who are poor. Support for disabled people on low earnings is another example.
  8. Equal opportunity. Rehabilitation and the promotion of employment can both be seen as means to further equality of opportunity for people with disabilities.
  9. Participation in society. This encompasses rehabilitation, employment and income support; it is also a justification for a range of benefits in kind intended to promote social inclusion for people with disabilities, including housing, transport, leisure, cultural and educational benefits.
  10. Market-based and voluntary provision. With the exception of insurance-based social protection, the role of non-governmental organisations (NGOs) in this field is overwhelmingly geared to disability, not to incapacity. The voluntary sector has a wide range of objectives, including humanitarian, religious, mutualist and commercial aims. State intervention which is based on support of the voluntary sector necessarily reflects those principles to some degree.

Benefits provided to deal with sickness are based on different criteria.

  1.  Social protection. The principle of social insurance is intended to cover changes of circumstance and needs which might arise. This extends to cover for medical care, the incurring of unexpected costs and income maintenance.
  2.  Income maintenance. People wish to protect themselves from circumstances in which their income might be interrupted. This is sometimes done through social assistance but more typically it affects people who have previously been earning.
  3. Economic efficiency. Part of the rationale for incapacity benefits is based, not in the circumstances of the incapacitated worker, but in economic processes. Employers wish to maximise the productivity of the workforce. Rules relating to short-term incapacity allow for restoration of full capacity; rules relating to long-term incapacity allow for removal of less productive workers from the labour market. (Note that there is a potential tension between this principle and the desire, in relation to people with disabilities, to promote increased participation in the labour market.)
  4. Early retirement. A scheme for incapacity benefits may become in effect a
    surrogate scheme for early retirement. Because it legitimates withdrawal from the labour market, it makes it possible for those who hope to retire a means of doing so.
  5. The functioning of medical services. The balancing of medical priorities has
    been an important element in the administration of incapacity benefits: part of the purpose of sickness benefits has been to facilitate and encourage medical consultations, but the routine certification of sickness has proved burdensome and (in some systems) ineffective as a means of prioritisation.

Although there is some overlap between the two issues, it mainly happens in so far as disability implies incapacity, or incapacity includes disability. A person who is disabled does not need social protection or income maintenance solely on account of the disability; a person who is incapacitated without disability does need social protection, but is not necessarily disadvantaged in terms of equality of opportunity or participation in society.

What the government proposes is to confine health benefits solely to people who pass the assessment for Personal Independence Payment – that is, people with disabilities, who have a long-term, functional limitation in capacity.  The key proposal in the White Paper is this:

145. We are therefore proposing to replace the current UC LCWRA element with a new UC health element. The new element will be awarded to people who are receiving the UC Standard Allowance and any PIP element.

146. This new element will abolish the need to be found to have limited capability for work and work- related activity, as is the case with the current UC LCWRA element. This will remove barriers in the system that can prevent people who would like to, from entering or remaining in employment.

So – what happens to people who are not disabled, but sick?  The answer is that they will be treated simply as if they were unemployed.  The Institute for Fiscal Studies points out that “The 1 million people who are currently on incapacity but not disability benefits could potentially lose out from this change – with a typical health-related UC claimant losing £354 per month.”  They are going to be expected to engage in job-seeking for 35 hours a week.  They are going to have to report for meetings, and be sanctioned if they are too sick to get to them. People with conditions such as heart disease or cancer are going to have to undertake a PIP assessment on the off-chance, when they have no reasonable prospect of qualifying  – a situation that was recorded in some detail when in the past a million people who applied for Disability Living Allowance had to be rejected. This is going to be an administrative nightmare.  The CEO of the charity Mind has commented that the policy represents “a one-dimensional, overly-simplistic approach to a complex, systemic issue.”  The proposed reform  disregards everything we know about this sort of benefit.  It is staggeringly stupid.



Changing the Work Capability Assessment

It’s been announced, in various fora, that the government will propose in a forthcoming White Paper to abolish or reform the Work Capability Assessment.  This is the pro-forma points system used to determine whether or not a person has limited or no capability for work.

The  government’s priorities lie in ‘supporting’ people into work, rather than determining whether or not it is reasonable for people to work – which is supposed to be the legal test.  We can probably all agree that the WCA is not a good test.  It is slow, bureaucratic and rather bad at identifying what people’s circumstances actually are.  Torsten Bell has suggested, on Twitter, that the actual plan is to replace the WCA with the test for PIP – a different kind of test, but still one which has little to do with capacity.

Calling for reform doesn’t imply, as some might think, that the process of certification should go back to GPs, who have quite enough on their plate already.  In my 2017 book, What’s wrong with social security benefits?, I made a series of proposals about how the WCA could be refomed. Here’s an extract.

As things stand, nearly everyone who claims is being assessed.  …  Although repeated checks on people with long-term conditions have now been acknowledged to be ‘pointless’, most of the assessments that remain are little better.   They either confirm the obvious or they duplicate information that is already held.  Some assessments are necessary: many people with disabilities cannot say whether they are disabled or not, and have no idea whether or not their disability fits the criteria for benefits. Any general rule, no matter how sensitively it is administered, is going to have to deal with some grey areas.  But the same approach does not have to apply to everyone.
First, it is possible to identify certain conditions which should imply automatic entitlement, offering benefits on minimal or secondary evidence – either accepting on sight that the person has a qualifying disability (double amputation, severe disfigurement) or passporting benefits on the basis of provision by other agencies (congenital disability, blindness).
Second, there are conditions which will have led to prolonged long term contact with health services, and certification from a consultant is sufficient to establish that the condition is there without requiring further detailed examination of personal circumstances. Examples are terminal illness, multiple sclerosis, MND, malignant neoplasms or brittle bones.
Third, there are conditions where existing services in long-term contact with the individual are far better placed to judge the impact of a condition than an independent assessor could be, and it would be appropriate to accept medical certification. Examples are continued psychosis, epilepsy, dementia and learning disability.
Only after these three categories are considered is it appropriate to think in terms of further individual assessment. The points scheme currently used in a range of benefits was initially developed from work to establish the range and severity of disabilities in the UK. That research validated the approach through a range of tests, but it pointed to an important conclusion: that once the primary disabilities had been identified, it was very rare for further disabilities to make any notable difference to the findings, and that information served no useful purpose. It follows that it is neither appropriate nor necessary to ask most claimants whether they can go to the toilet unaided.  The question is embarrassing and the information obtained is for the most part irrelevant. The assessment process should begin by asking people to identify their most important disabilities, ask questions about those, and go further only in marginal or complex circumstances.
Finally, there will be a residual category of people who are not adequately dealt with by any of the four stages above, and who will require or ask for a more thorough comprehensive assessment. This category should be small.

Asking an artificial intelligence to write an essay on social policy

I wanted to see what ChatGPT would make of a social policy essay, so I asked a starter question:

What is a welfare state, and is Britain one?

A welfare state is a government that provides a range of social services and benefits to its citizens, including healthcare, education, social security, and other forms of assistance, in order to ensure that they have a basic standard of living and access to basic necessities. The idea behind a welfare state is to create a safety net for individuals who may not be able to provide for themselves due to age, disability, unemployment, or other factors.

Britain is generally considered to be a welfare state, as it has a long history of providing a range of social services and benefits to its citizens. The British welfare state was created after World War II, with the introduction of the National Health Service (NHS) in 1948 and the creation of the welfare state in 1949. Since then, Britain has continued to expand its welfare state, with the introduction of additional social services and benefits over time.

However, the level of support provided by the British welfare state has been subject to some controversy in recent years, with some arguing that it is too generous and discourages people from seeking work, while others argue that it is not generous enough and leaves vulnerable people without adequate support.

There are some mistakes in this.

  1.  Provision in many welfare states isn’t  made by the government.
  2. Just about every country in the world provides some health care and some education.  More than 150 countries now have some kind of national scheme for cash support.
  3. The welfare state needs more than a ‘safety net’.  Safety net provision, or ‘residual’ welfare, was the model for the Poor Laws centuries before the welfare state was thought of.  That also reflects on the comment that Britain has a ‘long history’ of this – it does, but the welfare state was founded after the second world war.
  4. The NHS Act was in 1946, and the welfare state was introduced formally on 7th July 1948.

Steve Mckay, from the University of Lincoln, got ChatGPT to refine the answer.

A welfare state is a political and economic system that prioritizes the provision of social welfare programs and services to its citizens. These programs and services aim to ensure that all individuals have access to basic necessities, such as healthcare, education, housing, and income support, regardless of their socioeconomic status. The welfare state is often seen as a means of promoting social equality, reducing poverty, and promoting economic stability.

Britain has a long history of welfare state provision, beginning with the introduction of the National Insurance Act in 1911. However, it was not until the post-World War II period that the British welfare state took its modern form. During this period, the Labour government introduced a range of social welfare programs, including the National Health Service (NHS), social housing, and a comprehensive system of social security benefits.

Since then, the British welfare state has undergone significant changes, reflecting broader economic and political shifts. The 1980s saw the rise of neoliberalism and a growing emphasis on market-oriented policies, which resulted in the privatization of some public services and the scaling back of certain welfare programs. In the 1990s and 2000s, the Labour government introduced a range of initiatives aimed at reducing poverty and social exclusion, such as the introduction of tax credits and the Sure Start program for early years education.

However, the 2008 financial crisis and subsequent period of austerity saw significant cuts to social welfare spending, resulting in reduced access to certain programs and services. This has been particularly felt by those who are most in need, such as disabled people and low-income families. Critics argue that this erosion of the welfare state has undermined social equality and resulted in growing levels of poverty and inequality.

Despite these challenges, Britain remains a welfare state, albeit one that is undergoing significant transformation. The provision of social welfare programs and services remains a central feature of British society, and there continues to be significant public support for the welfare state. However, the effectiveness of these programs and services in addressing issues such as poverty and inequality remains a matter of debate. Some argue that the welfare state is inadequate and requires significant reform, while others believe that it is a vital mechanism for promoting social justice and economic stability.

I’m not sure quite how he did it, but this version is a lot better than the one I asked for.  The welfare state is now described as a system; it’s tied to a range of principles, including citizenship, equality and being there for everyone; and it’s subject to key tests, including poverty, social justice and economic stability.

Despite that improvement, this still doesn’t add up to an undergraduate essay.  An essay in social science is primarily an exercise in processing information.   The first step is to select material, bringing together information.  At the most basic level, a piece which brings together information from several sources requires more skill (and more work) than one which takes all its information from one source.

The next step is to get the selected material in order.  Referencing is again crucial, because a student  who goes through the material by covering everything said in one book, followed by everything said in another, is showing less skill than someone who can take material from disparate sources and put it in order.

Third comes evaluation.  Again at the most basic level, commenting on the material which has been selected and ordered  is a way of showing one understands it.  But evaluation that is not based on evidence and argument  is nothing more than an opinion, and markers cannot legitimately mark a piece up or down just because they happen to like or dislike what has been said.   The test, yet again, is a test of skill in handling the material.

The AI falls short of this at every point, for two reasons.  The first is that it doesn’t sift and sort information in its own right: it gets words in order, but there is no material here to sort, and none to evaluate.  The second is that it has not provided any referenced material.   Referencing is a crucial part of the exercise, at every stage.  It reveals how much material has gone in to the selection; it distinguishes material that has been sifted and sorted by the student from ordering that is carted whole from a single source; and it distinguishes the student’s critical commentary and understanding from what came from the sources.  Without that evidence of understanding, there is nothing to mark.


News from Maine: a “welfare magnet”?

The state of Maine, in an article I’ve just read, has ‘an international reputation as a welfare magnet’, a claim that might surprise the European countries  which have taken in hundreds of thousands of people.   There were no fewer than – do sit down if you find you need air and smelling salts – 400 unauthorised migrants who came to Maine last month.  I don’t have comparable figures for January, but I do have them for December, from the EU’s Frontex agency.  Here they are, in a table reporting unauthorised crossings into the EU and the UK. They seem to be a little larger than Maine’s figures, despite its ‘international reputation’.

The article on Maine conveys the author’s sense of disapproval at the existence of the people it calls ‘illegals’.  (My own view on that term is here.) The writer tells us:

The 400 foreign nationals who crashed the southern border and headed for Maine last month include 63 families with an average of 2 children each, most of whom will soon be enrolled in local public schools if they aren’t already. In addition, another 151 of the border-crashers who arrived in January are individuals without spouses or children.

So one of the principal items of concern seems to be that people are travelling with children who will need schooling.  Even more daring, there is talk of providing free basic health care to people who have very low resources:

this radical proposal … would make Maine the first state to offer Medicaid benefits to all adult residents who are in the country illegally.

The Federal rules, under  Obamacare , are restrictive by European standards – it is difficult for migrants even to get access to the ‘marketplace’ for health insurance – but Minnesota explicitly exempts refugees from the 5-year waiting period that otherwise applies to non-citizens.

The proposal to extend basic health care, or ‘MaineCare’, is described here.   Maine already makes that provision for children, and California and New York have extended provision for older people.  The opponents of the proposal to extend basic health care have tabled legislation ‘to protect Maine taxpayers’. Perhaps they might like to consider the advantages of becoming a ‘magnet’ for the citizens of the future.


Misreading the SDGs

Although I’ve been booked in for an online conference on the Sustainable Development Goals, I’ve found hardly anything in it I can relate to.  A large part of the problem rests with the SDGs themselves.  There are simply too many tests, and too many priorities.  Wildavsky, in Speaking truth to power,  complains that long lists of targets become “mechanisms for avoiding rather than making choices”.  The Economist commented, when the SDGs were first announced, that “a set of 169 commandments means, in practice, no priorities at all.”

A second problem rests in the voluntary nature of the SDGs.  Governments have been left to decide for themselves what they are going to choose from the pick-and-mix in front of them.  In this respect, the process looks a lot like the ‘open method of coordination’ in the European Union – an excuse to carry on with whatever they were doing before.

The third problem, however, rests in the injection of that word, ‘sustainability’. The agenda of the conference I was booked in for seems to be devoted entirely to sustainability – nature, climate change and the planet – and says virtually nothing about development.  As so often happens, the discussion of the needs of the global south has been been diverted into a discussion of the priorities of the developed world.

Overpayments – challenged through judicial review

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.