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

Before making a third-party deduction from social security benefits for utility charges, the Secretary of State must give the claimant an opportunity to provide information and representations about the interests of the claimant and their family. Post-decision review and appeal will not ordinarily satisfy procedural fairness where prior representations are practicable and may prevent an immediate reduction in a claimant’s low income.

The statutory requirement to assess the particular family’s interests reinforces that duty. Guidance which permits decisions based solely on information from the utility supplier, without requiring prior contact with the claimant, presents a misleading account of the legal position and is unlawful.

The Secretary of State appealed from Cavanagh J’s decision in [2023] EWHC 2392 (Admin). The judge had held that guidance governing third-party deductions for fuel and water debts unlawfully permitted officials to deduct sums from social security benefits without first inviting representations from the claimant.

The deductions were authorised by regulation 35 and Schedule 9 to the Social Security (Claims and Payments) Regulations 1987. Their imposition depended on the Secretary of State forming an opinion, or being satisfied, that a deduction would be in the interests of the claimant’s family.

The appeal concerned procedural fairness, the proper construction of the Regulations, the Tameside duty to obtain sufficient information, the meaning of the guidance and the High Court’s costs order. A respondent’s notice raised broader questions about how a claimant’s interests should be evaluated.

1. Appeal dismissed. The High Court correctly held that the guidance was unlawful. The judgment of Edis LJ was agreed by Warby and Phillips LJJ.

2. Common law fairness required the Secretary of State to give a claimant an opportunity to provide information and representations before making a third-party deduction. The principles in Doody, Bank Mellat and Balajigari were consistent. Where a statutory power may cause significant detriment, prior representations will ordinarily be required unless the legislation excludes them or they would be impossible, impracticable or pointless. Any such exception requires close examination.

3. The existence of mandatory reconsideration, appeal and supersession procedures did not make prior participation unnecessary. Post-decision representations would be made only after the deduction had reduced an already low income. They also carried the risk that the original decision would influence its reconsideration. On the evidence, inviting representations beforehand was practicable and would not frustrate the statutory scheme.

4. The construction of paragraphs 6(1) and 7(2) of Schedule 9 to the Social Security (Claims and Payments) Regulations 1987 independently supported the same conclusion. The Secretary of State had to assess the interests of the particular claimant and family before exercising the discretion. Relevant matters might be uniquely within their knowledge. An assessment based only on a utility supplier’s spreadsheet, without giving the claimant an opportunity to contribute, was unfair and contrary to the statutory scheme.

5. The judge was entitled to find that decision-makers generally relied on the suppliers’ spreadsheets and that a deduction could remove a significant sum from claimants living on low incomes. The guidance merely suggested that decision-makers consider contacting the supplier or consumer. It therefore allowed decisions without prior representations and presented a misleading account of the applicable legal obligations within the third category identified in R (A) v Secretary of State for the Home Department [2021] UKSC 37.

6. The same facts established a breach of the Tameside duty. No reasonable decision-maker could be confident of possessing sufficient information about a claimant’s interests without asking the claimant for their views.

7. The court declined to determine the broader questions in the respondent’s notice about the substantive meaning of a claimant’s interests. Those questions were unnecessary and should await a case in which they arise directly. The challenge to the High Court’s costs order disclosed no error of law.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The court upheld the finding that the guidance unlawfully permitted third-party deductions without a prior opportunity for representations. It declined to decide the broader issues raised by the respondent’s notice.
2. High Court, Administrative Court: In [2023] EWHC 2392 (Admin), Cavanagh J upheld one aspect of the claimant’s challenge. He held that the guidance was unlawful because it permitted third-party deductions without first inviting representations or information from the claimant. Other challenges failed, but the claimant received her costs.