Helen Timson, R (on the application of) v Secretary of State for Work and Pensions

A statutory discretion to make third-party deductions from subsistence benefits must be exercised in the claimant’s interests, not simply the creditor’s. A bare objection to a deduction is not itself relevant, although reasons for objection may reveal relevant circumstances. Fairness and the Tameside duty require the claimant to be offered an opportunity, before the decision, to provide representations or information in every case, subject to the limited possibility of prior consent. Guidance to officials which, read as a whole, implies that such contact is normally unnecessary presents a misleading account of the law and is unlawful. The challenges based on exclusion of personal circumstances, A1/P1 and article 14 failed. The claim succeeded only because the guidance did not require a pre-decision opportunity to make representations.

The claimant, a vulnerable recipient of income-related employment and support allowance, challenged guidance governing deductions from benefits to recover fuel and water debts owed to utility companies. Her own deductions had ceased, but she remained at a real risk of future deductions. The claim alleged that the guidance unlawfully treated consent and personal circumstances as irrelevant and failed to require representations before a deduction decision. It also raised claims under article 1 of Protocol 1 and article 14 of the ECHR. The central issues were the meaning of the statutory requirement that deductions be in the “interests of the family”, the common-law duties of fairness and reasonable inquiry, and whether the guidance presented a misleading account of those duties.

1. Common-law policy test. The court applied the principles in R(A) v Secretary of State for the Home Department [2021] UKSC 37. Guidance is unlawful where it authorises or approves conduct conflicting with the addressee’s legal duty. Guidance issued to officials may also be unlawful where, read as a whole, it purports to give a full account of the legal position but presents a misleading picture through omission or misstatement. It need not detail every possible exercise of a discretion.
2. Interests of the family. Under the Social Security (Claims and Payments) Regulations 1987, the relevant interests are those of the claimant or family, not those of the utility company. The statutory structure recognises that a deduction will not always be in the claimant’s interests. A bare refusal of consent is not itself relevant, although the reasons for objection may disclose relevant information. Autonomy or a wish to control budgeting is not, without more, a relevant consideration.
3. Representations and information. Given the potential loss of up to 25% of benefits, fairness and the Tameside duty required claimants to be offered an opportunity, before the decision, to make representations and provide information. Utility-company information might be incomplete, stale or inaccurate. Post-decision review and appeal did not cure the defect. The guidance, read objectively, implied that contacting claimants was normally unnecessary. That omission created a Category (iii) defect affecting a material and identifiable number of cases.
4. Other grounds and Convention claims. The guidance did not preclude consideration of personal circumstances, so the third common-law ground failed. A third-party deduction was a control of use of a possession for A1/P1 purposes, but the scheme was sufficiently accessible, precise and foreseeable and struck a fair balance. The article 14 claim failed because the claimant had no relevant “other status” and was not in an analogous position to persons outside the scheme.
5. Relief. Relief was not withheld under section 31(2A) of the Senior Courts Act 1981. The claim for judicial review therefore succeeded on the guidance defect only. The Convention claims were dismissed, and written submissions were invited on the terms of a declaration.