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Top Decision Making and Appeals topic #2554

Subject: "Commissioner - 'benefits law is the most complex'" First topic | Last topic
gcharter
                              

Welfare Rights Officer, Rotherham Metropolitan Borough Council
Member since
26th Feb 2004

Commissioner - 'benefits law is the most complex'
Wed 13-Feb-08 10:09 AM

Hello, can anyone dredge through their memory for a Com Dec a while back where the Commissioner said words to the effect that benefits law is either very complex or one of the most complex/convoluted areas of law. We could do with it to help justify our existence, and also for some training that I am going to run.

I've been googling away and all I can come up with is R(DLA)6/01 & I don't think that is the one I am after.

Does it exist or am I fantasising?

  

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Replies to this topic
RE: Commissioner - 'benefits law is the most complex', dbcwru, 13th Feb 2008, #1
RE: Commissioner - 'benefits law is the most complex', fkaGerry2, 13th Feb 2008, #2
      RE: Commissioner - 'benefits law is the most complex', Gareth Morgan, 13th Feb 2008, #3
           RE: Commissioner - 'benefits law is the most complex', Gareth Morgan, 13th Feb 2008, #4
RE: Commissioner - 'benefits law is the most complex', Anselmo, 18th Feb 2008, #5
RE: Commissioner - 'benefits law is the most complex', gcharter, 19th Feb 2008, #6
RE: Commissioner - 'benefits law is the most complex', claire hodgson, 19th Feb 2008, #7
      RE: Commissioner - 'benefits law is the most complex', ariadne2, 19th Feb 2008, #8
           RE: Commissioner - 'benefits law is the most complex', Narayan, 29th Feb 2008, #9
                RE: Commissioner - 'benefits law is the most complex', Steve Johnson, 03rd Mar 2008, #10
                     RE: Commissioner - 'benefits law is the most complex', s.ennals, 03rd Mar 2008, #11
                          RE: Commissioner - 'benefits law is the most complex', Gareth Morgan, 04th Mar 2008, #12
                               RE: Commissioner - 'benefits law is the most complex', matherj, 05th Mar 2008, #13
                                    RE: Commissioner - 'benefits law is the most complex', Gareth Morgan, 05th Mar 2008, #14
                                         RE: Commissioner - 'benefits law is the most complex', Neil Bateman, 05th Mar 2008, #15

dbcwru
                              

Welfare Rights Officer, Darlington Welfare Rights
Member since
25th Nov 2005

RE: Commissioner - 'benefits law is the most complex'
Wed 13-Feb-08 11:09 AM

I can't help directly but a full-time tribunal chair once said to me that social security law is 1 of the most complex areas of law - he used the words "as complex as tax law". Any Commrs ref would be useful for me too. Matthew

  

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fkaGerry2
                              

Deputy Manager, Sheffield Advice Link
Member since
20th Dec 2005

RE: Commissioner - 'benefits law is the most complex'
Wed 13-Feb-08 12:32 PM

Think you might find it here
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=108&topic_id=2293&mode=full

  

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Gareth Morgan
                              

Managing Director, Ferret Information Systems, Cardiff
Member since
20th Feb 2004

RE: Commissioner - 'benefits law is the most complex'
Wed 13-Feb-08 12:59 PM

There are numbers of these sorts of comments as a quick trawl through our Social security Law CD-Rom shows. These might fit in with your search

CSIS/815/2004

"21. As the Deputy Commissioner said at paragraph 17 of his decision, and I think he was right:

“I take this view because entitlement to income support is a complex matter. Had an application form been supplied, the claimant would have been asked whether he had any claims for benefit pending and his potential entitlement would have been identified. I think that in a benefit system as complex as that of the United Kingdom, the claimant cannot be expected to identify all the circumstances which may open the door to a successful claim. In my view, he received information which led him to believe that a claim for income support would not succeed. He is within sub-paragraph (d).”"

Often quoted

"Following Thomas (EC Ref c328/91), it is accepted that under this Article discrimination in respect of other benefits schemes can only be justified "if such a discrimination is objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes."

You may be thinking of,

R1/04(SF) from the Lords

"56. The benefits system is necessarily enormously complex. This was true even in the early days, when it was mainly based on flat rate contributory benefits, and means tested benefits were seen as a safety net but not the norm. It has become even more so with increasing attempts to target benefits upon the most needy. The history of funeral payments sketched above is a good illustration of this trend. The general public cannot be expected to understand these complexities. Claimants should not be denied their entitlements simply because they do not understand them. It has been a consistent objective of social security administration over the years to devise user-friendly forms and procedures to enable the benefits agencies to discover whether or not a claimant is entitled to benefit."

There's a Norther Ireland decision C2/02-03(IS)

“The fact that Income Support was to be reduced following a reduction in his wife’s DLA also appears to run contrary to the guiding principle of Income Support. It is submitted that it is a perfectly reasonable assumption that Income Support will rise if anything, following a reduction in another source of income. In any event, it is reasonable for , given his very limited knowledge and understanding of the complex benefits system, to assume that his benefits would not be adversely affected by a reduction in his wife’s DLA.”

From Hockenjos v SoS

"54. Mr Paines bluntly submits that the appellant has not advanced a better system. Mr Drabble submits that it is obviously possible to design a subsistence benefit system which copes more adequately with the problem of shared care than the present one does. Something less rigid and more flexible is required. The Secretary of State's response is that this would give rise to administrative problems and expense. However, there is no evidence that the government has tried to tackle the problem and in particular balance cost and administrative convenience against mitigating the rigidity of the scheme. Mr Drabble's argument is that social security legislation is full of examples of the government addressing complex issues in regulations. Whilst some element of what he calls "bright line" treatment is no doubt inevitable, leaving a 40% minority carer with no assistance for child costs during a period of involuntary unemployment is simply not acceptable. A system does not necessarily have to be designed on a night by night care basis or even on a week by week basis. It may be necessary to look at a longer period for example three months, see eg how shared care is dealt with under the Child Support Acts where a father does not pay a lower rate of child support unless he has the child for more than 104 nights a year. In my judgment there is considerable force in these submissions."

or Howker v SoS

"47. I agree that this appeal should be allowed for the reasons given by Peter Gibson L.J. Mr.Sales has rightly emphasised the important constitutional principle that it is for Parliament to determine how public money should be spent. Parliament has determined that we should have a system of social security benefits for those who are unable to provide for themselves. The broad outlines are laid down in legislation but the scheme is necessarily extremely complicated and requires frequent amendment to take account of social, economic and (as in this case) legal change. The details have to be contained in delegated legislation. But Parliament has also recognised the need for both the Secretary of State and for Parliament to have independent and expert social policy advice before making changes to the scheme. There are complex questions involved, about the definition of need, about equity between different groups, about the right kind of incentives, all in the context of very large numbers of people and very large sums of public money. In the context of a scheme whose fundamental purpose is to relieve 'want', the need for independent and expert advice is particularly clear when a change to the regulations might deprive a large number of existing claimants of their benefit."

another strong contender is Kerr v Department for Social Development in the Lords

"56. The benefits system is necessarily enormously complex. This was true even in the early days, when it was mainly based on flat rate contributory benefits, and means tested benefits were seen as a safety net but not the norm. It has become even more so with increasing attempts to target benefits upon the most needy. The history of funeral payments sketched above is a good illustration of this trend. The general public cannot be expected to understand these complexities. Claimants should not be denied their entitlements simply because they do not understand them. It has been a consistent objective of social security administration over the years to devise user-friendly forms and procedures to enable the benefits agencies to discover whether or not a claimant is entitled to benefit."

Another reference to complexity is in CIS/2031/2003

"9. The first argument is based on the facts that when she claimed the Grant, the claimant did not indicate that she had a partner and indicated that her own claim for income support was awaiting a decision. It is argued that this latter was inconsistent with her having a partner. Accordingly there was no error of law because there was no evidence on which the tribunal could have reached any other decision. I reject the logic of this argument. The fact that the claimant and Mr W did not regard themselves as partners does not mean that, as a matter of law, they were not partners. Anybody may claim income support – whether there is entitlement is a different question and the system is so complex that it is dangerous to draw conclusions about other matters from the mere fact that income support has been claimed. "

Not quite what you want, I suspect, but my favourite from Commissioner Hywel

9. The principle as thus understood has been described as extraordinary, and draconian: (see Mesher, Income Related Benefits, 1996 Edn. 191, and the Commissioners' decisions in cases CIS/408/1990 para 5, CIS/807/1991 para 6; though the second epithet may be thought a little unfair to Draco, whose harsh code of 621 BC was at least coherent). It is said to be for administrative convenience, to save the authorities the trouble of inquiring into the actual beneficial interests in jointly held or pooled assets, which may be difficult to discern. Reliance is placed on the very wide empowering legislation, which does indeed allow regulations to prescribe that for the purposes of assessing income or capital resources black must be treated as white and vice versa, and people as possessing what they do not, or not possessing what they do.

  

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Gareth Morgan
                              

Managing Director, Ferret Information Systems, Cardiff
Member since
20th Feb 2004

RE: Commissioner - 'benefits law is the most complex'
Wed 13-Feb-08 01:04 PM

Wed 13-Feb-08 01:05 PM by Gareth Morgan

Sorry about the double quote there, it won't let me edit Kerr out.

  

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Anselmo
                              

Income Recovery Advisor, Longhurst Homes - Boston, Lincolnshire
Member since
31st May 2007

RE: Commissioner - 'benefits law is the most complex'
Mon 18-Feb-08 04:27 PM

I also like this quote from David Taylor MP, in a parliamentary question in the Commons in 2005:

"The Lord's prayer that we have just said in this Chamber consists of 66 words and there are 42 laws of cricket, but the housing benefit regulations consist of 967 pages, five parts, six schedules and 40 statutory instruments. Does my hon. Friend agree that it is no wonder that the local authorities charged with implementing housing benefit find those regulations too intricate, long-winded and expensive?"

  

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gcharter
                              

Welfare Rights Officer, Rotherham Metropolitan Borough Council
Member since
26th Feb 2004

RE: Commissioner - 'benefits law is the most complex'
Tue 19-Feb-08 09:27 AM

Big thanks to everyone. Most enlightening

  

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claire hodgson
                              

Solicitor, Askews Solicitors, Thornaby, Stockton on Tees
Member since
17th May 2005

RE: Commissioner - 'benefits law is the most complex'
Tue 19-Feb-08 10:24 AM

which of us wants to send all that to the LSC, which thinks the layman can deal with it all him/her self......?

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: Commissioner - 'benefits law is the most complex'
Tue 19-Feb-08 05:16 PM

There have been some interesting decisions which use the expression "Byzantine complexity" (like ordinary complexity, only more so and fascinatingly but incomprehensibly beautiful in its mystical ornateness). Over to the Googlers for some examples.

  

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Narayan
                              

Welfare Rights Officer, Tameside Metropolitan Borough Council
Member since
05th Jul 2007

RE: Commissioner - 'benefits law is the most complex'
Fri 29-Feb-08 12:35 PM

At paragraph 6 of CI/147/1986 Commissioner Devenport referred to the complicated Social Security System and branded the DSS officials "expert" on who the inexpert claimant must rely! And I quote:
“6. It is not part of the function of a medical board to advise those appearing before it of their social security rights. The adjudication officer submits that the burden was on the claimant to enquire of his right to benefit. Nevertheless, it remains an obvious fact that those who are in contact with their local DSS office do rely greatly upon the help, experience and advice of those in the local office. And it is an essential feature of our social security system that those in the local offices are so ready to give claimants and potential claimants the benefit of their help, experience and advice. The social security system is, in our modern welfare state, so complicated that the inexpert inevitably have to rely upon the expert. Having regard to his many contacts with the local office, I do not find it surprising that the claimant did not formally make an enquiry of his rights under the Acts. The question ultimately is one of “reasonableness” (see CD/15/79) and whether the person concerned has done or omitted to do what could reasonably be expected of him having regard to his right under the social security scheme……..”

I hope this is useful!

Mr.Sanatkumar Dave
Welfare Rights Officer
Tameside Metropolitan Borough Council
Council Offices
Wellington Road
Ashton-under-Lyne
Tameside OL6 6DL

Tel: 0161 342 3494
Fax: 0161 342 2168

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Commissioner - 'benefits law is the most complex'
Mon 03-Mar-08 09:37 AM

I think Gareth's list is fantastic. I dimly remember such a quotation from the 1980s. It was from the standard heavyweight text of the day on social security, ('The law of Social Security') by Professor Ogus of Newcastle University, which he co-wrote with someone called Barendt. I seem to remember quoting it at overpayment tribunals in the vain hope of trying to get sympathy for the claimant.

The old memory fades out at this point ('I remember when it was all trees around here...')

Steve

  

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s.ennals
                              

Solicitor, Essential Rights Legal Practice, Sheffield
Member since
19th Apr 2007

RE: Commissioner - 'benefits law is the most complex'
Mon 03-Mar-08 05:15 PM

You could also look at the Court of Appeal decision in Ellis v Chief Adj Officer - a case I did on deprivation of capital back in 1995 or so. Useful comments from LJ Otton (I think)

Simon Ennals

  

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Gareth Morgan
                              

Managing Director, Ferret Information Systems, Cardiff
Member since
20th Feb 2004

RE: Commissioner - 'benefits law is the most complex'
Tue 04-Mar-08 11:48 AM

Presumably

"Ellis v. Chief Adjudication Officer

See R(IS) 5/98
(formerly CIS/69/1994)

CA (Staughton, Otton and Schiemann LJJ)

DECISION OF THE COURT OF APPEAL

Miss L. Findlay (instructed by Barne Ward & Julian Griffiths, Nottingham NG1 5HS) appeared on behalf of the Appellant."

(there is another Ellis v CAO on our CD-Rom but that's a remunerative income case)

Otton says,

"In Chief Adjudication Officer and The Secretary of State for Social Security v. Dowell & Others (unreported) SSTRF/0178/B this Court (Nourse, Hobhouse LJJ and Sir Ralph Gibson) considered five cases where the question was whether the claimant’s capital exceeded the limit. All three judges discussed in depth the conceptual difficulties involved.

Hobhouse LJ at p.13D said:

“Against this statutory background it is very difficult for a court to approach any question of the construction of the regulations on the basis that there is any intention that the regulations shall have, in their application, a relationship to reality or any identifiable statutory policy of justice. There is, therefore, in my judgment no escape from adopting a construction of the regulations which derives little, if any, assistance from anything other than the literal meaning of the actual language used. The detailed policy of the regulations is in many respects obscure and equivocal. The arguments which have been addressed to this Court have not enabled me to discern any clear principle which guides the drafting of the two provisions in the regulations which have given rise to the dispute before us. However I have been prepared to assume that there is an overall intention that income support should be paid, and only paid, to those who have inadequate financial means to support themselves; that ease of administration of the scheme and the avoidance of complication are considerations which may have motivated those responsible for drafting the regulations and that the creation of artificial situations by means of deeming provisions has not been adopted as an end in itself.”

I respectfully agree and approach the present problem mindful that the scheme, if it is to be implemented speedily and pragmatically, should be applied with a minimum of complication."

  

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matherj
                              

Welfare Advice Officer, Melville Housing Asscociation, Dalkeith, Midlothia
Member since
22nd Jan 2004

RE: Commissioner - 'benefits law is the most complex'
Wed 05-Mar-08 10:00 AM

Just reading my "Welfare Rights bulletin 202" and read:

Terry Rooney MP, CHair of the Work and Pensions Committee (and former welfare rights worker) told fellow MPs on the Committee that "anyone who claims to be an expert in social security legislation is either a liar, or they lead a very sad life." Mr Rooney denied being an expert, but nevertheless owned up to leading a sad life.

  

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Gareth Morgan
                              

Managing Director, Ferret Information Systems, Cardiff
Member since
20th Feb 2004

RE: Commissioner - 'benefits law is the most complex'
Wed 05-Mar-08 11:30 AM

Sob.

  

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Neil Bateman
                              

Welfare rights consultant, www.neilbateman.co.uk
Member since
24th Jan 2004

RE: Commissioner - 'benefits law is the most complex'
Wed 05-Mar-08 09:42 PM

A quote from Geoff Fimister's book Social Security and Community Care which I cited in my own book Practising Welfare Rights. While originally about the relationship between social security and community care, the comments apply more generally:

"Social security as it relates to community care represents one of the most difficult aspects of a difficult system. If we look at benefit provisions overall, we can see that they are not only painfully complex, but also subject to a process of continuous change. At any given time, it is likely that one substantial upheaval or another is ether under way or in the pipeline, or both; while batches of detailed amendment regulations arrive with alarming frequency...there is a certain macho “complexity culture” pervading the drafting of benefit law. As an article in the Law Society Gazette put it (commenting on social security law in general but, but giving an example from the community care field): ’Cross-references – to sub-sections, to other sections, to schedules, to a myriad of regulations and indeed to other Acts proliferate. One finds exceptions to exceptions. Double and even triple negatives almost seem like a badge of honour: No self–respecting section is complete without one’…Or as Lord Justice Glidewell put it, in a case concerning the severe disability premium…’it is deplorable that legislation which affects some of the most disadvantaged people in society should be couched in language which is so difficult for even a lawyer trained and practising in this field to understand’ (Bate v Chief Adjudication Officer, Court of Appeal, 30.11.94) <[1996> 1 WLR 814]. For our present purposes, suffice it to say that the grafting of the new community care arrangements onto this system has created a good deal of bafflement on the ground as to what benefits service users might be entitled to and what is the current state of play as the rules of entitlement continue to mutate."

  

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