R (Timson) v Secretary of State for Work and Pensions

The claimant challenged the lawfulness of the Secretary of State's written guidance (the Decision Maker Guidance manual and an internal Overview document) governing the use of third party deductions (TPDs) from legacy benefits (notably income-related employment and support allowance) to pay water and fuel debts. The court applied the Supreme Court's framework in R(A) v Secretary of State for the Home Department [2021] UKSC 37 and considered whether the guidance was unlawful under Category (i) or (iii) of that decision and whether the approach breached common law duties (Padfield, Tameside and procedural fairness) or the European Convention on Human Rights (Article 1 Protocol 1 and Article 14).

The court held that the guidance was not a Category (i) error and did not purport positively to make claimants' consent irrelevant. However, read as a whole the guidance (by implication and omission) gave the clear impression to departmental decision-makers that it was not necessary, as a matter of course, to invite representations or obtain information from claimants before deciding whether a TPD was "in the interests of the family". That omission made the guidance unlawful in Category (iii) terms because the decision-makers were the Secretary of State's own officials and could reasonably rely on the guidance as a comprehensive statement of the law. The court accepted that a decision-maker must offer claimants an opportunity to make representations / provide relevant information before taking the TPD decision (breach of common law fairness and Tameside duty), but found no Padfield breach. The Convention claims (A1/P1 and Article 14) were dismissed: the statutory scheme and its operation (including reforms to supplier spreadsheets and notice practices) were not found to be manifestly without reasonable foundation.

Background and parties

The claimant, a disabled former police officer on low income-related employment and support allowance, challenged the lawfulness of Department for Work and Pensions guidance used by decision-makers who decide whether to implement Third Party Deductions (TPDs) under the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), Schedule 9. The Secretary of State was defendant; Severn Trent Water plc was an interested party. The claimant sought a declaration that the guidance was unlawful and contended the guidance systemically generated unlawful decisions; she also raised Convention arguments under Article 1 Protocol 1 and Article 14 (Human Rights Act 1998).

Nature of the application / relief sought

• Claim for judicial review seeking declarations about the respects in which the TPD scheme, as operated by written guidance, was unlawful (no damages pursued).

Issues framed

1. Whether the guidance contained a positive, incorrect legal statement (Category (i) in R(A)) or, by purporting to be a full statement of law while omitting material requirements, presented a misleading picture (Category (iii)).
2. Whether the guidance breached common law duties (Padfield, Tameside and the procedural duty of fairness) by (a) treating claimant consent as irrelevant; (b) failing to require DMs to seek representations and information from claimants before making TPD decisions; and (c) effectively excluding consideration of claimants' circumstances.
3. Whether the claimant was a "victim" under the Human Rights Act and, if so, whether A1/P1 or Article 14 were breached.
4. Procedural objections including whether the claim was academic, time-barred or relief should be refused under section 31(2A) Senior Courts Act 1981.

Reasons and key holdings

• The court applied the Gillick-derived test explained in R(A): guidance is unlawful only if it authorises or approves unlawful conduct by those to whom it is directed or, in a Category (iii) context, if it purports to be a full account of the law but is misleading by omission.
• The guidance did not contain a positive statement that claimant consent is irrelevant; the mere fact of objection is not, by itself, a material legal factor when deciding whether a TPD is "in the interests of the family". The claimant's preference for autonomy does not justify treating consent as decisive.
• However, there is a legal obligation of fairness and an aspect of the Tameside duty to offer claimants an opportunity to make representations and provide relevant information before a TPD decision is taken. The DMG and Overview, taken as a whole and as addressed to departmental decision-makers, gave the clear impression (by omission and implication) that contacting claimants was not ordinarily required; that was unlawful in Category (iii) terms.
• The claimant's third ground (that guidance precluded consideration of claimants' circumstances) failed: the DMG did not imply claimant circumstances were irrelevant and listed non-exhaustive considerations.
• Convention claims failed. The court held a TPD is an interference/control of use under A1/P1 but, applying the margin of appreciation and the applicable standard (manifestly without reasonable foundation in social security matters), the operation of the scheme and recent practical reforms did not breach A1/P1. Article 14 failed at the preliminary "other status / analogous comparator" stage.
• Remedies: judicial review claim succeeded in part. The court proposed to receive further submissions on the precise form of a declaratory remedy.

The claim succeeded in part. The court declared that the Defendant's written guidance was unlawful in that, by implication and omission, it gave departmental decision-makers the misleading impression that they need not offer claimants an opportunity to make representations or provide relevant information before deciding to impose TPDs; this breached common law procedural fairness and the Tameside duty. The claimant's other common law grounds and Convention (A1/P1 and Article 14) claims were dismissed. The court invited parties to agree the form of an appropriate declaration.