The previous blog set out our approach at CPAG to access to justice in the social security field, namely ensuring: access to information, access to advice and assistance, and access to mechanisms for challenging unlawful decisions.
Continuing with the last of these steps, the normal route for challenging a social security decision is by appealing it to a tribunal.1 Sometimes though, the appeal route is not available or, while available in principle, is not effective. In those situations, the route of legal challenge is judicial review.
Judicial review cases can be high profile. Each year at CPAG, we bring a small number of test cases by way of judicial review. Our test cases seek to ensure that ordinary families who are going through difficult periods in their lives where they need to claim welfare benefits (eg, because of bereavement or because, often despite working, they are unable to provide fully for their family) have their benefit entitlement determined by legislation which complies with basic public law requirements, including being in accordance with human rights law and not being irrational.
However, there are many more situations where a potential claim for judicial review will never reach the court and will instead settle at what is known as the pre-action stage ie, after a letter has been sent setting out the decision/action being challenged, why it is considered unlawful, what remedy is sought and indicating that judicial review proceedings will be commenced without any further notice if the matter is not resolved. These are not test cases seeking to challenge how the law is being applied or interpreted, or whether the law itself is valid. Instead these are cases about ensuring basic standards of good administrative decision making are adhered to. They are about:
- straightforwardly getting the law wrong (eg, requiring a woman to satisfy a residence test to qualify for universal credit despite regulations expressly exempting her from that test because she has been granted leave to remain under the destitution domestic violence concession);
- fettering discretion/operation of a blanket policy (eg, automatic recovery of overpayments even where caused by official error);
- failure to follow own guidance (eg, subjecting a terminally ill person to work search and work availability requirements as part of the conditions for receiving a benefit, despite the provision of the relevant form evidencing his terminal illness and confirming that he is not expected to live more than 6 months);
- undue delay (especially around making a mandatory reconsideration decision in the absence of which a claimant cannot start the appeal process); and
- failure to provide sufficient reasons (eg, where generic reasons are provided which fail to enable a claimant to know the actual basis on which she is said not to meet the relevant criteria for a disability benefit).
Despite the ability of the pre-action process to deliver a quick (often within 14 days) and cost-free resolution to a case, it has been underused within the welfare rights sector: it has been seen largely as a legal tool and therefore the domain of lawyers; and there has been a concern that, however meritorious the case, if it does not settle at the pre-action stage, there is a reputational risk if a non-legal organisation is unable to follow through on the intention to commence judicial review.
It was because of this underuse and accompanying concerns that CPAG established a judicial review project at the start of 2019 specifically aimed at training welfare rights advisers to engage in the pre-action judicial review stage, providing a bank of template pre-action letters and identifying law firms that would be prepared to take on a claim in the unlikely event that it did not settle at the pre-action stage.
From a survey CPAG conducted at the end of September 2020, we know that the 71 welfare rights advisers who responded had between them sent 74 pre-action letters in the preceding months using the templates available on CPAG’s website, and 66 of these had resulted in a positive result for their client – ie, 89 per cent.2 That is at least 66 individuals who have been able to secure a decision resulting in correct benefit entitlement which they would not have been able to secure, or would not have been able to secure within any reasonable timeframe, without the use of the pre-action protocol process for judicial review.
The present government’s concerns as to the use of judicial review in a small number of high profile legal challenges to controversial government actions has led it to set up a panel to review administrative law more generally. As expressed in our response to that panel’s call for evidence, CPAG is extremely concerned that making the process of bringing judicial review claims more difficult will not necessarily thwart the bringing of such high-profile cases. However, what it definitely will mean is that the ability of the ordinary individual to use judicial review, which lies at the heart of the effectiveness of the pre-action process, is severely reduced to the point of it becoming an empty threat, thereby completely removing the incentive for public bodies to address blatantly unlawful decisions and ensure good decision-making more generally. Essentially, judicial review as a legal safety net will have been eclipsed and, while this would affect us all as a society, those who have most interactions with public bodies, often the most vulnerable in society (social security claimants, asylum seekers, those with disabilities and special needs) will be affected the most.