Blundel & Ors, R (On the Application Of) v Secretary of State for Work And Pensions

A public authority may adopt a policy governing a statutory discretion, but it must remain willing to consider exceptional individual cases and depart from the policy where the statutory scheme requires it. An alternative procedure operated by another decision-maker does not cure an unlawful fetter, particularly where that procedure does not exercise the same statutory power. A free-standing irrationality challenge remains subject to the high Wednesbury threshold. A failure to perform the public sector equality duty may nevertheless attract no relief where the court is satisfied that the outcome would highly likely have been materially the same.

Five universal credit claimants challenged the Secretary of State’s policy for deducting sums from universal credit to discharge criminal fines. The policy applied fixed deduction rates and directed claimants facing hardship to seek variation from a fines officer or magistrates’ court.

The claims alleged unlawful fettering of discretion, irrationality, indirect disability discrimination and breach of the public sector equality duty under the Equality Act 2010. The court had to determine whether the Secretary of State was required to consider exceptional requests for reduced deductions, whether the policy was irrational, whether Mr Day had established the necessary disadvantage, and whether any breach of the equality duty justified relief.

1. Fettering of discretion. The claim succeeded on the first ground. The statutory power permitted deductions of any sum within prescribed parameters, including no deduction. The Secretary of State’s policy instead fixed the rate and admitted no exception for individual financial hardship. A lawful policy must leave the decision-maker prepared to consider exceptional cases and depart from the policy where appropriate.
2. The availability of an application to a fines officer or magistrates’ court did not cure the defect. That procedure concerned direct repayment arrangements or variation of the fine, not the Secretary of State’s distinct power to deduct benefit at source. The Secretary of State could not answer a complaint that she had closed her mind by saying that another decision-maker could provide a less demanding payment arrangement. The reasoning in R (Mayaya) v Secretary of State for the Home Department [2011] EWHC 3088 (Admin) was not applied slavishly to the materially different statutory context.
3. Irrationality. The free-standing irrationality ground failed. The balance between effective fine collection and possible hardship was a matter for the Secretary of State’s judgment. There was nothing irrational in setting the overall deduction cap at 30 per cent, reducing it prospectively to 25 per cent, or allocating individual payment adjustments principally to fines officers and magistrates’ courts. The absence of a prior policy-specific evaluation did not overcome the high threshold.
4. Disability discrimination. Mr Day failed to establish the particular disadvantage required for indirect discrimination or the substantial disadvantage required for reasonable adjustments. The evidence did not identify an appropriate cohort of disabled persons within the Equality Act 2010 definition or prove the relevant comparative impact.
5. Public sector equality duty. The Secretary of State had failed to perform the duty under section 149 of the Equality Act 2010. The later equality impact assessment was a rearguard exercise and did not cure the earlier breach. Nevertheless, relief was refused under section 31(2A) of the Senior Courts Act 1981, because timely compliance would highly likely have produced no materially different outcome.
6. The court did not propose to quash the whole policy. The parties were to address the appropriate relief, with a declaration contemplated.

The claims were brought as judicial reviews. Permission was initially refused in one claim on the papers, but permission was later granted after an oral hearing before Lieven J, and the claims proceeded together to a full hearing before the Administrative Court.