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Something to think about maybe? Ultra Vires or Right to Possession or none of these.
Hello,
I put this letter to the DWP some weeks ago and have received a response. As I suspected, the response really doesn’t address the points raised in the letter. Now I’ve been around for some time now, and although I know the basics of Ultra Vires, I’ve struggled with some of the intricacies. I put this letter in asking the question which is obvious within it as I couldn’t reconcile the point with vires or otherwise. Sadly, my client doesn’t wish to pursue the matter any further now. I’m sure that there are many out there who will think this a non-starter, and will give many reasons why it is not, but maybe it’s worth a thought at least and maybe it will promote a discusson that will help us all. Anyway, here’s the letter I sent:
With Mr A’s permission I now offer an argument that you might not be familiar with. I see from your letter of 2014 that you have placed a time limit of 365 days on how long he will be able to get contributory based ESA; but you have not said why this is the case. The facts of the matter are that when he claimed Contributory Incapacity Benefit he was not time limited as to the length of the award. It was clear that if he was to satisfy the 15 point threshold for the benefit, he would qualify and receive the benefit. Incapacity Benefit and ESA are a possession that he has contributed to. Now we find that a new and unnecessary barrier has been introduced to take away that possession. This cannot be right. He still remains unfit for work; placing him in a WRAG does not mean that he is fit for work; whether that decision is correct or not. You will note that I have made reference to possessions here. I do this simply to connect the benefit at issue to that, or those possessions referred to in Article 1 of the First Protocol to the Human Rights Act:
“Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
It is submitted that it is not in the public interest to take away Mr A’s benefit for no other reason to save money and it cannot be justified. He is unfit for work; if he were not, he would have to work or would have to claim Jobseeker’s Allowance.
The action to restrict the length of time for receipt of ESA, I respectfully submit, is nothing more than an administrative convenience and cannot be justified (Thomas & Others in ICA and SDA). Neither can it be seen to hold any kind of rationale. It is submitted that the introduction of the restriction of a time limitation is nothing more than a removal of a possession and is incompatible with Article 1. With these comments in mind, I now ask that you reconsider your decision to time limit Mr A’s Contributory ESA.
As I say, just a thought.
Thank you.
Patrick
As you know ultra vires means beyond powers. For delegated legislation the question is, are the regulations authorized by primary legislation? However, the time limiting legislation is in primary legislation and the secretary of state is bound by it. As long as he can show that he did not exercize unduly any discretion that the statute affords him or that he hasn’t acted wednesbury unreasonably then he will usually be safe on the issue.
As for the HRA, the right to protection of property is not absolute. The right can be breached if it pursues a legitimate aim of a democratic society, is proportionate and is the minimal interference necessary to achieve the aim. What the courts have to do is balance the rights of the individual against the public interest. The government would respond that the policy aim is to reduce public spending to lower the deficit. That’s what you need to argue against. However, the courts cannot strike down primary legislation. They can only make a declaration of incompatibility.
As you know ultra vires means beyond powers. For delegated legislation the question is, are the regulations authorized by primary legislation? However, the time limiting legislation is in primary legislation and the secretary of state is bound by it. As long as he can show that he did not exercize unduly any discretion that the statute affords him or that he hasn’t acted wednesbury unreasonably then he will usually be safe on the issue.
As for the HRA, the right to protection of property is not absolute. The right can be breached if it pursues a legitimate aim of a democratic society, is proportionate and is the minimal interference necessary to achieve the aim. What the courts have to do is balance the rights of the individual against the public interest. The government would respond that the policy aim is to reduce public spending to lower the deficit. That’s what you need to argue against. However, the courts cannot strike down primary legislation. They can only make a declaration of incompatibility.
Thank you very much for this, as always, most helpful.
The question that remains is whether, as is the case here, the action to remove a paid for right previously without time limitation is unreasonable: I am sick, I have paid for the protection offered when sick, why then remove that protection? My condition is the same as I was when on Incapacity benefit. My inability for work is the same as it was on Incapacity Benefit. Is that not unreasonable?
Thank you.
Patrick
I think you should try and collect data on the actual amount each year that the provision saves and data on the number of people affected and how they are affected. You should also balance the saving against costs generated by the measure, e.g, the amount spent on appeals, drops in household income leading to DHP expenditure. That last one might be difficult to get. If the savings are negligible within overall total spending the provision might not be proportionate.
The 365 day limit on ESA(c) appears in s1A of the Welfare Reform Act 2007. It is primary legislation and so ultra vires is not really the appropriate line of argument. I think what you are after is a declaration that s1A is incompatible with A1P1, which can only be made by a court. There is no point in expecting a decision maker or Tribunal to uphold an appeal where they are prevented by primary legislation from doing so.
The effect of a declaration of incompatibility in the primary legislation is that the Secretary of State has to consider whether to amend the offending Act, which he may do by Regulation as the HRA itself provides the enabling power.
But I cannot see that you will get any joy from DWP at the DM level.
I think you should try and collect data on the actual amount each year that the provision saves and data on the number of people affected and how they are affected. You should also balance the saving against costs generated by the measure, e.g, the amount spent on appeals, drops in household income leading to DHP expenditure. That last one might be difficult to get. If the savings are negligible within overall total spending the provision might not be proportionate.
I take your point about proportionality, but I think that this issue veers from a question of savings to the public purse. This is a question of reasonableness for the individual and any question of the public purse should stand aside from this fundamental point. I am a person who, through no fault of my own, has become so ill that I can no longer work. I am no different than before and the stroke of a pen has taken away my only source of income; an income that I have paid for over the years. This movement of the goal posts is unreasonable - that’s all, unreasonable.
Thank you.
Patrick.
The 365 day limit on ESA(c) appears in s1A of the Welfare Reform Act 2007. It is primary legislation and so ultra vires is not really the appropriate line of argument. I think what you are after is a declaration that s1A is incompatible with A1P1, which can only be made by a court. There is no point in expecting a decision maker or Tribunal to uphold an appeal where they are prevented by primary legislation from doing so.
The effect of a declaration of incompatibility in the primary legislation is that the Secretary of State has to consider whether to amend the offending Act, which he may do by Regulation as the HRA itself provides the enabling power.
But I cannot see that you will get any joy from DWP at the DM level.
Am I not right in thinking that decisions from DM’s, appeals and the like are essential before matters of compatability can be considered by higher authorities?
Thank you.
Patrick.
Well you’re out of time to challenge the introduction of S1A WRA 2007 so chasing a dispute up the appellate heirarchy would be the logical route.
For that you need something to appeal against so yes, a decision from a DM then FtT then UT is essential.
Well you’re out of time to challenge the introduction of S1A WRA 2007 so chasing a dispute up the appellate heirarchy would be the logical route.
For that you need something to appeal against so yes, a decision from a DM then FtT then UT is essential.
Hello Dan,
As I say, my cleint doesn’t wish to pursue. And the fact that my contract comes to an end at the end of this month means that I will probably be on the scrap heap on 1st October, or retired anyway, so I won’t be around anymore. So this thread’s intention has been for others to take up should they think worthy of their time. I admit that it’s a bit a a stab in the dark and may well need some considerable fine-tuning if it is to have even a minimal chance of success. Nonetheless, I thought it worthy of running up the flag pole to see if anyone would salute it.
Thank you.
Patrick.