Judicial Responses to Bright Line Rules in Social Security: In Search of Principle

Publication Date01 May 2009
AuthorEmma Laurie
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00748.x
Judicial Responses to Bright Line Rules in Social Security:
In Search of Principle
Emma Laurie
n
This article considers judicial responses to the use of ‘bright line’ rules in social security law. It
analyses, within the frameworkof judicial deference,the receptiveness of the judiciary to an argu-
ment by the executive that a rule is justi¢ed as being administrativelyconvenient to operate.The
article questions the proposition that the judiciary is at its mostdeferential when complex issues
of socio-economic policy or resource allocationare raised in the context of social security law.A
contrast is drawn between cases involving an issue of statutory interpretationa nd those applying
a proportionality test. The article tests the presumption that a di¡erence in approach should be
discernable in these two situations. It concludes bycritici sing the courts for failing to articulate
clearly the values at stake and by arguing for the need for greater transparency and a broader
public debate concerning the use of bright line rules.
There will inevitably be tensions in a mass scheme of social security provision
between individualised justice and maintaining operating costs within acceptable
limits.
1
Decisions therefore have to be made about the trade-o¡ between admin-
istrative e⁄ciency and justice.There are clear examples within social security law
where priority has been given tothe former through the use of ‘bright li ne’ru les;
that is, rules that have been formulated principally with ease of admi nistration in
mind.
2
While it is a laudable aim to have in place a system of social security that is
transparent and in which administration costs are kept to a minimum, rules that
are simple to administer have the potential to do rough justice in cases whe re a
bene¢t claimant falls just the wrong side of the demarcation line.
At the heartof this debate is the questionof striking the right balance be tween
the interests of the state and those of the individual to have their particular cir-
cumstances taken i nto account when their eligibility for social security bene¢ts
is being assessed. The contention of this article is that the government has a utili-
tarian instinct, to have the social security bene¢t administered as e⁄ciently and
cost-e¡ectively as possible. And provided that the rules achieve the policy objec-
tive of the bene¢t for the majority of its claimants, the government will not be
concerned with individual hard cases. By contrast, the Social Security Commis-
n
Lecturer, School of Law, University of Southampton. The ideas contained in thi s article were pre-
sented at a seminar held at the Schoolof Law in April 2008 and I amgrateful to the participants of that
seminar for their many helpful comments.I am i ndebted to Dr Ed Bateswho has provided both prac-
tical help and continuing encouragement. I would also like to express my thanks to Professor Nick
Wikeleyand the two anonymous referees for their valuable comments.
1 R. Sainsbury,‘SocialSecurity Decision Maki ngand Appeals’ in N.Harri s (ed),Social Security Law
in Context(Oxford: Oxford UniversityPress, 2000) 229.
2 Bright line rules are not, of course, exclusively associated with social security law and do not
always have the objective of ensuring ease of decision-making. In quite di¡erent contexts see,
for example, Evans vUK (6339/05) (2008) 46 EHRR 34 at [89] and Dickson vUK (44362/04)
(2008) 46 EHRR 41at [82] discussed below.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(3) 384^411
sioners and courts
3
have the potential to individualise justice and consequently to
act as a check on the government’s utilitarian drive. This article seeks to examine
the approach adopted by the judiciary when they are asked to adjudicate on cases
involving bright line rules and, in particular, to analyse t heir receptiveness to
arguments founded on administrative convenience.
The pointat which the line is drawnbetween the interests of the stateand those
of the individual, where resource allocation is at issue,is traditionally viewed as an
area in which judges have been reluctant to intervene on the basis that it is for
Parliament to decide how public funds should be distributed.
4
As Kavanagh
notes,‘Judges are neither well-placed nor quali¢ed to have an overview of an area
of law that may require a radical policy change and has various economic and
social implications . . . They are ill-equipped to make decisions of general policy
that may require the reconciliation and balancing of a broad range of con£icting
interests and viewpoints’.
5
The discussion will thus take place within the frame-
work of judicial deference to the legislature. Notwithstanding Lord Ho¡mann’s
doubts about the appropriateness of t hat term,
6
it is used here todenote the limits
of the judiciary’s powers, as compared with those of the executive and legislature.
The broader issue addressedis whether the received wisdom thatthe judiciary is at
its most deferential in cases involving social policy and the allocationof resources
is borne out in reality and, if so, to question whether such non-intervention is
desirable. Social security law is considered by many to be complex and arcane
7
and, leaving aside the medias i nterest in cases of ‘bene¢t scroungers’, it does not
generallycommand a high pro¢le. Nevertheless, it a¡ects millions of often vul-
nerable people and exempli¢es the coal face of routine administrative decision-
making and adjudication. In contrast with major changes to the bene¢t system,
such as the recent reform toi ncapacity bene¢t
8
and the new housing bene¢tsanc-
tions
9
, which have generated signi¢cant policy-level discussion,
10
there has been
3 Social security bene¢t claimants enjoy a statutory right of appeal to an appeal tribu nal and then,
with leave, on a pointof law to a Social Security Commissioner (Social Security Act1998, ss12
and 14)and subsequently the Court of Appeal and House of Lords. Under the Tribunals, Courts
and Enforcement Act 2007,chapter 2, the functions transferred to the new First-tier and Upper
Tribunals.
4 See, for example, Poplar Housing and Regeneration Community Association Ltd vDonoghue [2001]
EWCA Civ595; [2002] QB 48 at [69] (Lord WoolfCJ).
5 A. Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human
Rights Act1998’ (2004) 24 OJLS259, 273.
6R (Pro-LifeAlliance) vBBC [2003] UKHL 23; [2004] 1AC 185 at [75]. See also n 208 below and
associated text.
7 AsTerry RooneyMP drolly remarked,‘anyone who claims to be an expert in social security leg-
islation is either a liar, or they lead a verysad l ife’HC Deb vol 468 col 900 5 December 2007. See
also Hinchy vSecretary of State forWork and Pensions [2005] UKHL 16; [2005] 1 WLR 967 at [48]
(Baroness Hale).
8 Welfare Reform Act 2007, Part1.
9ibid,s31.
10 Department for Work and Pensions, A New Deal for Welfare: Empowering people to work Cm 6730
(January 2006) and Department forWork and Pensions,A New Deal forWelfare: E mpoweringpeople
to work^ ConsultationReport Cm 6859 (June 2006).The housing bene¢t-related sanctions for anti-
social behaviour havebeen the subject of particularlyprotracted consultation and debate: Depart-
ment for the Environment,Transport and the Regions, Quality & Choice: A D ecent Home for All
(April 2000);Department forWork and Pensions,HousingBene¢t Sanctionsand Anti-socialBehaviour:
A consultation paper (2003).
Emma Laurie
385
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(3) 384^411

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