The King (on the application of) Ms Helen Timson v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 23 September 2022 |
| Neutral Citation | [2022] EWHC 2392 (Admin) |
| Docket Number | Case No: CO/2022/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
and
[2022] EWHC 2392 (Admin)
Mr Justice Cavanagh
Case No: CO/2022/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jenni Richards KC and Tom Royston (instructed by Bindmans LLP) for the Claimant
Clive Sheldon KC, Katherine Apps and Gethin Thomas (instructed by Government Legal Department) for the Defendant
Jason Coppel KC (instructed by DWF) for the Interested Party
Hearing dates: 19 and 20 July 2022
Approved Judgment
Introduction
In these proceedings, the Claimant challenges the lawfulness of the Defendant's written guidance to officials (“decision-makers”) who are responsible for deciding whether it is in a benefit claimant's interests to have deductions made from their subsistence benefit in order to pay sums which are owed by those claimants to utility companies. The deductions are known as Third Party Deductions (“TPDs”). The Claimant contends that the Defendant's policy approach to TPDs in respect of fuel and water debts, as set out in the written guidance, generates decisions, such as those made in her case, in an unlawful way.
The Claimant is a former police officer who is unable to work because of significant disabling physical and mental health problems. She is dependent on means-tested benefits, including the income-related employment and support allowance (“IRESA”). She has a low income and has fallen into debt. These debts include arrears of utility bills.
The Social Security (Claims and Payments) Regulations 1987, SI 1987/1968 (“the 1987 Regulations”), make provision for the deduction from benefits of certain liabilities that are owed by a claimant, before the benefits are paid to the claimant. The sums deducted are paid directly to the creditor. This arrangement applies to certain types of “legacy” benefits, including IRESA, but does not apply to Universal Credit.
The present case is concerned with deductions of debts owed to water and energy companies. Deductions are made for arrears and for ongoing usage. There is a cap on the amount that can be deducted in respect of arrears. The Defendant decides whether to make a TPD, following a request by a utility company. These requests are made after a claimant has fallen into arrears and after other attempts by the utility company to reach an agreement with the claimant in respect of their energy or water debts have failed. The utility company's request to the Defendant for TPDs is often made in bulk format, by submitting Excel spreadsheets which contain the details of a large number of claimants in respect of whom TPDs are sought. The consent of the claimant is not required before these deductions are made, but, so far as water and fuel TPDs are concerned, the relevant provisions in the 1987 Regulations provide that the Defendant may only make TPDs if they are in the interests of the claimant's family (or, if, as in the present case, the claimant is single, in the interests of the claimant themselves).
At various times in recent years, utility companies, including the Interested Party, a water company, have been paid sums by the Defendant by way of TPDs from the Claimant's IRESA in respect of arrears and ongoing usage. I will summarise the factual position in relation to the Claimant later in this judgment, but, in short, the most recent TPD arrangements which applied to the Claimant consisted of TPDs in favour of the Interested Party between 24 September 2019 and 5 July 2021, and TPDs in favour of E.ON (formerly Npower), an energy company, between 9 March 2021 and 5 July 2021. Currently, both the Interested Party and E.ON have in place arrangements with the Claimant pursuant to which she pays an agreed sum towards ongoing usage and a token sum towards the arrears that she owes, and the utilities are not currently seeking TPDs in relation to the Claimant. However, there is always a possibility that the arrangements may break down and that a water or energy company might apply to the Defendant for a TPD in relation to the Claimant at some point in the future (although there is a moratorium on new TPDs for ongoing fuel costs, unless the claimant consents — see, further, below. This moratorium applies from 26 April 2022 until 6 April 2023. No similar moratorium applies to TPDs in favour of water companies.)
The Claimant contends that the policy that has been adopted by the Defendant for the exercise of the discretion whether to impose TPDs, as set out in written guidance that has been given to decision makers, is unlawful. I will begin by summarising the parties' submissions. Given the detail of those submissions, both oral and in writing, this summary, whilst setting out the main substance of the parties' respective cases, cannot deal with every nuance of their arguments.
Summary of the Claimant's submissions
The Claimant does not contend that the 1987 Regulations are ultra vires because they provide that TPDs can be imposed without the consent of a claimant. Nor does she contend that the Defendant acted unlawfully in imposing TPDs upon her in breach of the Defendant's own policy and guidance. Rather, she submits that the Defendant's policy approach to TPDs, as set out in written guidance that the Defendant has issued to decision-makers, in documents known as the Decision Maker Guidance manual (“DMG”) and the Overview document, in many cases systemically generates unlawful decisions, including those made in the Claimant's case. The Claimant contends that this means that the TPD scheme, as operated by the Defendant, is ultra vires the legislative framework, in the sense recently described by the Supreme Court in R(A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931.
In R(A), at paragraph 46, Lord Sales and Lord Burnett of Maldon CJ, with whom the other Justices agreed, identified three categories or types of case in which a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others. The Claimant submits that the policy in relation to TPDs is unlawful by reference to two of these categories, Category (i) and Category (iii).
Category (i) unlawfulness exists:
“where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way.” ( R(A), paragraph 46).
Category (iii) unlawfulness exists:
“where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.” (Ibid)
In essence, the Claimant contends that the guidance in the documents is unlawful in Category (i) and Category (iii) terms because it (1) directs a decision-maker that the question whether a claimant consents to a TPD is not a relevant consideration or material factor, when the true position is that a claimant's wishes are an important and often determinative consideration (this is claimed to be Category (i) unlawful); (2) misdirects decision-makers by implying that they do not have an obligation to seek representations and information from the claimant before taking a decision about whether to impose a TPD, and by omitting to tell decision-makers in terms that in many cases, in order to act fairly, they will need to contact claimants in order to ascertain their wishes and to give them an opportunity to make representations (this is alleged to be Category (iii) unlawful). The Claimant submits that such consultation is required because it is only by consulting with claimants, and, in particular, by finding out whether they will consent to a TPD and, if not, why not, that the Defendant is in a position properly to decide whether to impose the TPD. In her skeleton argument, the Claimant said:
“….wherever deductions are opposed by the claimant it could only rarely – and only after detailed investigation – be possible for the Defendant to be satisfied that the claimant was wrong about their own interests.”
There is a third ground of challenge, which was set out in the Claimant's skeleton argument as follows:
“The way in which the Defendant operates the Deductions Scheme and the guidance she provides to her officials effectively precludes consideration of the circumstances of claimants.”
….
“The fact that it will frequently be in a customer's interests to risk not discharging their obligations to the utility company is excluded from consideration.”
….
“A lawful policy would recognize that the claimant's position, and any reasons they give for it, will be a highly relevant consideration which may demonstrate that no deductions can lawfully be made.”
This is different from the other two grounds in that, rather than claim that the guidance is unlawful because it directs the decision-makers to ignore the claimant's wishes, or effectively directs the decision-maker not to give the claimant an opportunity to make representations, the Claimant is contending that the guidance has the effect of directing decision-makers to ignore the circumstances of the claimant altogether. This third ground is referred to only briefly at paragraph 63 of the Amended Statement of Facts and Grounds. It amounts to a further Category (iii) challenge.
The Claimant submits that it cannot simply be assumed that a TPD is in the interests of a person who is claiming the relevant benefits and who is in debt to the utility...
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The King (on the application of K) v Secretary of State for Work and Pensions
...together with the published BORG 2022, the DMGW ought to have been published: R (Timson) v Secretary of State for Work and Pensions [2022] EWHC 2392 (Admin), [223]. It cannot be said that there were any compelling reasons not to publish the DMGW policy (cf Lumba, [38]). This is a simple ca......