Complexity, Law and Social Security in the United Kingdom
| DOI | 10.1177/138826270600800203 |
| Date | 01 June 2006 |
| Published date | 01 June 2006 |
| Subject Matter | Article |
IN THE UNITED KINGDOM
NEVILLE HARRIS*
Abstract
The UK has a very complex system of interrelated, rule-based social security benefits
and tax credits which are highly conditional and targeted. The conditions of
entitlement and provision for the assessment of need have been bound up in an
intricate legal framework. Rules have enabled governments to adapt and develop
schemes to meet social needs while controlling the delivery of welfare from the centre,
but the system, its components and its legal framework have evolved into a state of such
complexity that some of the core aims of welfare and its management in the modern
state are being undermined. Focussing on Great Britain,1 this article explains the
causes of this complexity and discusses its impact. It also assesses the practicability of
significant simplification, for which there are increasingly urgent calls.
1.
INTRODUCTION
While the concept of social security is a simple one, the arrangements under which
increasingly diverse forms of provision are made tend to necessitate an elaborate and
*
Professor of Law, University of Manchester and editor, with Nick Wikeley, of the Journal of Social
Security Law. Address: School of Law, Oxford Road, Manchester, M13 9PL, United Kingdom; e-mail:
neville.harris@manchester.ac.uk. This article is an updated and considerably expanded version of a
paper prepared by the author for a conference in Beijing, organised by the Academy of Social
Sciences at Beijing University in January 2005. The earlier version was published in the conference
proceedings (The Reform of Social Insurance in China and the Development of Legal Systems (Social
Sciences Academic Press (China), 2005)). The author acknowledges with thanks the advice of the
editors, the journal’s anonymous referees, and Professors Rodney Brazier, Anthony Ogus and Nick
Wikeley.
1
Northern Ireland has a separate legal framework to Great Britain but a mostly identical benefits
system.
European Journal of Social Security, Volume 8 (2006), No. 2
145
Neville Harris
complex system of law and administration. In the UK, social security law has for a
number of years been one of the most complex, wide ranging and voluminous areas of
public law. The technicality and intricacy of social security law in other states, notably
the US and Australia and many European states, are also well known.2 White, for
example, notes that within the EU, ‘[i]ndividual national social systems tend to be
regarded as arcane and complex areas of law’.3 Schulte has observed that ‘[a]s many
countries are aware of the complexity of social security systems, many of them have
already taken measures to rationalise existing legislation’, citing the establishment in
the 1980s of a Royal Commission in Belgium with a responsibility for the codification,
harmonisation and simplification of social security legislation; and the development,
in Germany, of the Sozialgesetzbuch (Social Code), aimed, among other things, at
introducing greater transparency and accessibility to benefits.4 The authors of a survey
report on social assistance in OECD countries in fact found that ‘all social assistance
schemes are complex’.5 Complexity seems to be an inherent problem where a state’s
legislative arrangements attempt to allocate resources to citizens systematically but in
response to a wide range of circumstances and/or to meet diverse contingencies, and to
require continual updating.6 As Lord Donaldson MR said in Bruce in the Court of
Appeal in 1992: ‘The rules and regulations which govern entitlement to welfare benefit
in a modern state are necessarily numerous, highly complex and subject to frequent
variation and amendment...’7
The complexity inherent in social security legislation today is partly the product of
the piecemeal reform and overlaying of rules that has been a continual feature of the
development of benefit and tax credit schemes. As we shall see, the basic aims of the
social security system are pursued via a range of different schemes and the interaction
between them gives rise to complexity, particularly in the way that entitlement under
one scheme may affect the level of support under another. There is also an ‘intrinsic
complexity’ derived from the complex design, structure and operation of the
individual schemes themselves.8 ‘Complex rules’ bedevil the system, including the
strict conditions which ration entitlement and in some cases enforce moral principles,
2
Regarding Europe, see, for example, Kemp (2000), Pieters (2002, 2003), Schulte (2002) and White
(1999). Kvist (1998) argues that comparative analysis often pays insufficient regard to the complexity
of individual states’ unemployment benefit schemes. Regarding Australia and the USA, see Bates
(1997) and O’Neill (1994). Australia’s Social Security Act of 1991, although representing an attempt
to codify the law and simplify some of the language used, was nevertheless referred to by the Full
Court of the Federal Court (in Re Blunn v Cleaver (1993) 111 A.L.R. 65 at 82) as consisting of ‘a maze
of provisions made the more complex by prolix definitions, provisos and exceptions’.
3
White (1999), at 140.
4
Schulte (2002), accessed at www.issa.int/pdf/initiative/reports/2Schulte.pdf.
5
Eardley et al. (1996), at 4.12.
6
See, ibid. and, for example, Kemp, note 2 supra, at 48-49 and Schulte, note 2 supra, at 9 and 14.
7
R v Legal Aid Board ex p. Bruce [1992] 1 FLR 324.
8
Spicker (2005), 5-9.
146
Intersentia
Complexity, Law and Social Security in the United Kingdom
such as worksearch conditions attached to benefits for the unemployed.9 A further
cause of complexity, according to Spicker, is ‘the situation of claimants’, which vary
widely and can change rapidly in ways that are relevant to individual needs for social
security support at a particular point in time.10 Complexity in social security also
derives from the decision making processes concerning entitlement, including the way
that claims and data relevant to them are handled.
Over the past few years complexity within the law, structures and administration of
social security in the UK and the problems to which it gives rise have been highlighted
by a number of official monitoring bodies and a ‘Benefit Simplification Unit’ has been
established by the government. This article examines the causes of complexity in social
security, assesses its implications, and considers the case for simplification and its
practicability.
2.
AN OVERVIEW OF CURRENT SOCIAL SECURITY
BENEFITS AND TAX CREDITS IN THE UK
Social security is the biggest area of public expenditure in Great Britain. Total
expenditure on social security amounted to £110.5 billion in 2004-05.11 Huge
numbers of people receive welfare benefits in the form of social security payments or
tax credits (which have replaced some social security benefits), as shown in Table 1
below, which also sets out a typology of current benefits in the UK. It will be seen that
the system is based around two main types of primarily weekly-paid benefit or tax
credit: (i) income-related benefits/credits, for which statutory entitlement is based
upon the claimant’s income and/or wealth (capital) and therefore depends upon
means-testing; and (ii) benefits which are non-means tested and paid to persons who
fall within the relevant prescribed circumstances.
9
Ibid.
10
Ibid.
11
Department for Work and Pensions statistics, accessed at dwp.gov.uk/asd/asd4/medium_term.asp
(13th June 2006).
European Journal of Social Security, Volume 8 (2006), No. 2
147
Neville Harris
Table 1. Numbers of persons in receipt of the principle social security benefits and tax
credits in Great Britain in 2005/0612
INCOME-RELATED
NON-MEANS TESTED
Non-full-time
Non-workers or
Full-time workers
Contributory
Non-contributory
workers or of
workers
only
pensionable age
Income support
Council tax benefit
Working tax credit
State retirement
Child benefit
Basic maintenance
Meets all or part of Payments to per-
pension
Contribution to-
for persons with no council tax liability sons in work, sup- Basic retirement
wards cost of up-
or little income
if on low income
plementing a low
pension(11.59m)
bringing of child
(2.13m)
(5.0m)
family income
(7.3m - for 12.9m
(1.88m)
children)
Income-based job-
Housing benefit
Contribution-based
Disability living al-
seeker’s allowance
Meets all or part of
jobseeker’s
lowance/Attendance
Like income sup-
rent liability if on
allowance
allowance
port, but for per-
low income
Basic income for
To meet extra costs
sons expected to
(3.98m)
maximum of first 6 due to disability
meet job search
months when
(DLA: 2.76m, AA:
conditions (approx.
unemployed (ap-
1.64m)
650,000)
prox. 200,000)
Pension credit
Child tax credit
Incapacity benefits
Carer’s allowance
Income mainte-
Paid to parent on
Short or long term To supplement
nance for older
low income for
sickness benefit
income of person
persons (those of
support of child
(2.71m)
caring for severely
pensionable age)
(5.7m)
disabled person
(2.71m)
(444,000)
Bereavement bene-
Industrial injuries
fits
benefits
Allowances to men For victims of in-
or women whose
dustrial injury or
spouse has died
disease (340,000)
(183,000)
As the table shows, the income-related benefits and credits are subdivided into:
(a) those paid to non-workers, being persons of working age who are not in full-
time employment – the relevant benefits being income support and income-based
jobseeker’s allowance (IBJSA) – and, for those who are aged 60 or over, state
pension credit;
12
DWP, First Release, DWP Quarterly...
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