June 9
The claimant was in receipt of social security benefits from which, pursuant to regulation 35(1) of the Social Security (Claims and Payments) Regulations 1987 read with Schedule 9, third party deductions had been made to pay arrears and ongoing usage charges owed to utility companies including the interested party. By a claim for judicial review the claimant challenged the lawfulness of the Secretary of State’s written guidance issued to civil servants who were responsible for deciding whether it was in a benefit claimant’s interests to have third party deductions made in respect of fuel and water debts. She contended that the policy approach set out in the decision-maker guidance manual and an overview document generated unlawful decisions as it did not require the decision-makers to seek the views or representations of a claimant before implementing deductions and, in particular: (i) the guidance unlawfully directed decision-makers that the question whether a claimant consented to deductions was not a relevant consideration; (ii) it misdirected decision-makers by implying that they did not have an obligation to seek representations and information from the claimant before taking a decision about whether to impose deductions, and by omitting to tell them that in many cases, in order to act fairly, they would need to contact claimants in order to ascertain their wishes and give them an opportunity to make representation. The judge allowed the claim, concluding, inter alia, that the guidance was unlawful since it informed decision-makers that a third party deduction direction could be made without seeking representations from the benefit claimant, which was contrary to the common law duty of fairness and the Tameside duty on decision-makers to make reasonable attempts to obtain the information necessary for their decision-making. The Secretary of State appealed.
On the appeal—
Held, appeal dismissed. On a true construction of the Social Security (Claims and Payments) Regulations 1987, and in accordance with the common law duty of fairness, the Secretary of State could only direct a third party deduction from benefits pursuant to regulation 35 of and Schedule 9 to the Regulations in circumstances where the benefit claimant had been given an opportunity to make representations before that power was exercised. In particular: (i) a system whereby the claimant was invited to supply information and representations only after the third party deduction had been made would be unfair; (ii) the opportunity to make representations before the decision was made would not frustrate the apparent purpose of the statutory power; and (iii) since the Regulations required that the decision-maker had to either form an “opinion” or be “satisfied” that the third party deduction would be “in the interests of the family”, it was impossible to see how a consideration of the interests of the family could take place fairly without the benefit claimant and other members of the family being able to make representations. Similarly, no reasonable decision-maker could conclude that they had enough information on which to make a rational decision about the interests of a benefit claimant for the purposes of complying with the Tameside duty without asking her what she thought about her interests. It followed that, since, on a true construction, it permitted a decision-maker to make a third party deduction direction without seeking representations or information from the claimant, the guidance was unlawful. Accordingly, the judge had been right to allow the claim on that ground (paras 42–46, 48–49, 64, 65, 66, 67, 73, 76, 83, 84, 85).
Clive Sheldon KC, Katherine Apps KC, and Gethin Thomas (instructed by Treasury Solicitor) for the Secretary of State.
Jenni Richards KC and Tom Royston (instructed by Bindmans LLP) for the claimant.
Jason Coppel KC (instructed by DWF) for the interested party, Severn Trent Water Ltd.