Authors:Sally Robertson
Last updated:2023-10-03
Ensuring entitlements and needs are met
Marc Bloomfield
Description: LAG 50 Years
Sally Robertson looks back over 50 years of LAG’s social security law coverage.
Security or welfare? Entitlement or handouts? Is unemployment essentially voluntary? Language matters, as the Social Security Advisory Committee and the Institute for Government pointed out in their March 2021 joint report, Jobs and benefits: the COVID-19 challenge:
Only rarely these days do politicians – or indeed the public – refer to social security. The phrase has largely fallen out of the political lexicon, being replaced by welfare (page 17).
Not at LAG. The last reference that I found to ‘welfare law’ as a separate section in the LAG Bulletin index was back in June 1977 (page 135). With the odd exception, it’s been ‘social security’ ever since.
In the 1970s, social security contributors were mostly from Child Poverty Action Group (CPAG): Henry Hodge, Richard Drabble, Peter Moore and Stuart Weir, to name a few, with academics also figuring. For example, in the March 1974 issue, Tony Bradley, who died last year and was described by Scottish Legal News as ‘one of the greatest constitutional lawyers and thinkers of his generation’, wrote about supplementary benefit and students (page 62).
Description: Legal Action welfare law clipping
Challenging discretion, using the courts and a test case strategy, was an early and continuing theme. Since the 1975 Acts on social security, pensions, child benefit and supplementary benefits, the structure has become increasingly codified. Means-testing has increased and rights to non-means-tested and contributory benefits for people of working age have been cut back. The language of ‘sanctions’ and ‘conditionality’ creates a veil of ‘business speak’ to distance politicians, decision-makers and administrators from recognising the misery of being cut off from income for infractions of the rules. Far too often, we come across Upper Tribunal decisions where the lower-tier decision-making is frankly indescribable.
A measure of the increasing complexity of social security is that CPAG’s National Welfare Benefits Handbook cost just 25p back in May 1973. At today’s prices, that is about £3.57, a fraction of the cost of the current range of handbooks.
LAG has been around all my working life. And in the personal. Looking back through our collection, I found the 1976 advert for a job at Newham Rights Centre. A partner, two kids and six cats further on, that sidetrack almost derailed this exercise of looking at how LAG’s coverage of social security reflects the radical changes we have seen over this half century.
My first ‘Recent developments in social security law’ article was in the January 1995 issue of Legal Action (page 10), co-authored with David Thomas, then legal officer at CPAG. Co-authoring with CPAG legal officers has continued. Stewart Wright took over from David in August 2000, and Simon Osborne has shared the load since February 2008.
In 1995, I was on the Bar Finals course, having left Disability Alliance in 1993 after writing 13 editions of the Disability Rights Handbook. At that stage, income support still covered pre-October 1995 mortgage interest payments: another measure of the changes – or cutbacks – seen in the system.
Description: Legal Action pages
Although LAG’s 25th anniversary edition (October 1997) noted (at page 12) that the first article entitled ‘Recent developments’ appeared in the February 1979 LAG Bulletin (page 44), the roots of the current ‘Social security: recent developments’ articles arguably lie in the social security ‘Tribunal round-up’ articles, which first appeared as a planned quarterly update in June 1974 (page 133). Throughout, the two longest-running substantive themes have been disability needs and the pre- and post-Brexit ways of excluding people from abroad from benefits.
‘Habitual residence’ was first introduced with effect from 1 August 1994 as an additional category of those defined as ‘persons from abroad’ and excluded from income support. Habitual residence cases, morphing into ‘right to reside’ ones, have remained a regular part of the twice-yearly round-ups of social security commissioner and, since 2008, Upper Tribunal decisions.
On the disability benefits side, in our first 1995 article (January, page 15), we explored ways of expanding the implications of the House of Lords’ decision in Mallinson v Secretary of State for Social Security [1994] 2 All ER 295. That decision had emphasised the overlap between attention and supervision, finding that, in general, any help reasonably required with an activity should be considered under both heads. It was given in the context of a blind person’s need for attention when walking outdoors in unfamiliar surroundings.
At that time, guidance to Benefits Agency staff sought to focus on a narrowly medical view of what assistance might be reasonably required, trying to exclude ‘non-essential’ cultural or social activities. In the January 1995 issue of Legal Action (pages 12 and 15), we reported success at commissioner level for a deaf woman using sign language (CA/780/91). She was unable to communicate effectively with non-signers without help from an interpreter: the commissioner held that it was right to consider the attention reasonably required to carry out a reasonable level of social activity. In August 1995 (page 14), we reported the Court of Appeal’s agreement (Secretary of State for Social Security v Fairey (1999) Times 22 June, CA).
Description: Legal Action clippings and book ad
By the August 1997 issue (page 21), the House of Lords had firmly rejected the Department of Social Security’s attempt to limit attention needs (Cockburn v Chief Adjudication Officer and another; Secretary of State for Social Services v Fairey [1997] 1 WLR 799). Lord Slynn said that a disabled person ‘is not to be confined to doing only the things which totally deaf (or blind) people can do and provided with only such attention as keeps him alive in such a community … social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life.’ Since that time, disability living allowance, which replaced attendance allowance for those qualifying before their 65th birthday, has itself been replaced by personal independence payment, explicitly to cut back on expenditure.
A third theme has been around in various forms since poor law days. I had forgotten about the wage stop. This was a precursor to the child and benefit cap. It limited benefits to a figure for net earnings, not counting actual overtime, for a claimant’s normal occupation and geographical area. Stuart Weir wrote about it in the July 1973 issue of the LAG Bulletin (page 145), part of CPAG’s campaign and research attacking the wage stop. The then Labour government announced in April 1975 that it would be abolished.
Description: Legal Action pages
That respite lasted until 2013, when the coalition government imposed the benefit cap, another – but more inflexible – version of the wage stop. The Institute for Fiscal Studies estimated that by February 2022 around 120,000 families faced a cut of about 14 per cent of what their income would be if there were no cap: an average of £3,150 a year.1Tom Waters and Tom Wernham, Reforms, roll-outs and freezes in the tax and benefit system, IFS Green Budget 2022, chapter 5, October 2022, page 15. Department for Work and Pensions statistics indicate that around 69 per cent of those families were headed by a lone parent.2Benefit cap: number of households capped to May 2022, DWP, 21 September 2022.
The Supreme Court’s 5:2 dismissal of the challenges to the benefit cap in its revised 2016 form by lone parent mothers and their children (R (DA and others) v Secretary of State for Work and Pensions; R (DS and others) v Secretary of State for Work and Pensions [2019] UKSC 21) was covered in the September 2019 issue of Legal Action (page 26). Lord Wilson, highlighting the difficulty the court found in dismissing the appeals, added as a postscript:
These appeals were rightly brought. The arguments raised in them have been of such weight as to attract this court’s most careful and sympathetic consideration; and they have led two members of the court to enter a powerful dissent from the majority’s dismissal of the appeals (para 91).
One of those dissenters was Lady Hale, who said that the weight of the evidence showed a fair balance had not been struck between the interests of the community and the interests of the children concerned and their parents.
Although the increasing codification of social security is intended to constrain the amount spent on benefits, LAG has remained at the forefront of those emphasising the language of entitlement to state benefits. Test case strategies continue, even though setbacks and failures show that law on its own is insufficient. One thing of which this review of the Legal Action social security archive has reminded me is the readiness of governments, of whatever hue, coalition or combination, to move the goalposts when a decision goes against them. We need the policy and campaigning input of all involved in the battle against poverty.
Thank you
LAG would like to thank Sally Robertson for this wonderful review of a really key area from our earliest days and also for her unwavering commitment to Legal Action over decades. Her first recent developments article was nearly 28 years ago, but we know she wrote for the magazine many years before then. Thank you Sally! We’d also like to mention our enormous appreciation for her current co-author, CPAG’s Simon Osborne, and those who came before: Stewart Wright and David Thomas. Thank you also to the authors of our annual ‘HB and UC housing costs: update’ articles: Bethan Harris, Desmond Rutledge and Kevin Gannon. Bethan started these updates with one Jan Luba QC in December 2000 and David Watkinson was a co-author along the way. LAG’s social security book authors also deserve a mention, including Martin Partington, who wrote Claim in time: time limits in social security law for LAG in the late 1980s/early 1990s (see above), and Paul Stagg, who wrote Overpayments and recovery of social security benefits in 1996. The fifth edition of Tribunal Practice and Procedure by Edward Jacobs was published in 2019. To all our other authors, both for books and Legal Action, and trainers in social security law over our half-century, thank you for your generosity in sharing your expertise with our readers.
1     Tom Waters and Tom Wernham, Reforms, roll-outs and freezes in the tax and benefit system, IFS Green Budget 2022, chapter 5, October 2022, page 15. »
2     Benefit cap: number of households capped to May 2022, DWP, 21 September 2022. »