Discretion And Law In The British And Irish Social Welfare Systems

AuthorLiam Thornton
PositionBCL (International) IV
By Liam Thornton
Law and Discretion
The debate on whether a welfare system imposes either a rule based or discretionary
system, while appearing a simple academic study at first, is one of enormous
significance for the many hundreds of thousands of people who rely on social welfare
payments each week to maintain subsistence. Imagine the decision of whether a
person could eat, cloth herself or pay the rent being held by one individual. Imagine
further, a person who does not reach the required legislative requirements for a given
welfare payment, suffering insurmountable hardship because of this legislative
provision. Both these examples are at the extremes of the discretion versus law
debate; however it serves to remind us that one, without the other, may have potential
disastrous consequences for an individual. This paper shall outline the arguments for
and against both systems, and give examples of how relying on either law or
discretion independently has resulted in perplexing results.
Discretion and Theory
“Where law ends discretion begins, and the exercise to discretion may mean either
beneficence or tyranny, justice or injustice, either reasonableness or arbitrariness”1.
Titmuss regards a complete reliance on discretion in welfare law as a “reversion to a
mass ‘poor law’ age”2 but maintains the necessity of discretion as essential to give
*BCL (International) IV. The author would like to thank Ms. Louise Crowley for constr uctive
comments on an earlier draft, the usual proviso remains; all errors are those of the author alone. The
author also extends his appreciation to the Bank of Ireland Millennium Scholars Trust for their
continued support.
1 Davis, D Discretionary Justice: A Preliminary Inquiry (Greenwood P ress, 1980, London) p. 3.
2 Titmuss, R. “Welfare ‘Rights’ Law and Discretion” in The Philosophy of Welfare: S elected Writings
of Richard M. Titmuss (Allen and Union, London, 1987) p. 233
COLR 2005 X.
flexible responses to the myriad of individual circumstances. Titmuss sees the
essential issue in welfare systems as getting the right balance between rules and law
on the one hand and discretion on the other. However Donnison views discretion as “a
rank weed”3 that submerges the welfare service. He feels that discretion leaves
claimants uncertain about their welfare entitlements4. Donnison regards tightly
regulated discretion as the key to dealing with welfare claims and ensuring fairness,
consistency and confidence in the welfare system5. Alder and Asquith feel that
“[L]egal control over the exercise of discretionary powers….ignore the
relationship….[with] the wider social, political and economic order”6. Both see
discretion as having problems of arbitrariness, inequality and, at times, failing to meet
the most basic requirements of justice. However, they note that a strict adherence to
rules gives rise to inflexibility, insensitivity and rigidness as to individual
Dworkin sees the institution of rights as representing “the majorities promise to the
minorities that their dignity and equality will be respected”7. Gilligan argues that the
“very coinage of rights is debased by discretion”8. However, Harris approaches the
question from the view that some discretion “must inevitably characterise welfare
provision”9, given the fact that the denial of a payment may be of such a serious
matter for the individual involved, to ensure the necessary flexibility which strict rules
3 Donnison, D The Politics of Poverty (London: Oxford Verbatim Ltd., 19 82) p. 90. David Donnison
was Chairman of the Supplementary Benefits Commission in the United Kingdom (U.K) from 1972
until it was abolished in 1980.
4 Ibid. p. 91
5 Ibid. p. 98
6 Alder, M & Asquith, S (Editors) “Discretion and Power” in Discretion, Justice and Poverty (London:
Heinemann Educational, 1981) p.10
7 As quoted in Harris, N Social Security Law in Context (Oxford University Pre ss, New York, 2000), p.
8 Ibid. p. 35
9 Ibid. p. 36
3 X
cannot provide. However the underlying emphasis of the “rules” versus “discretion”
conflict remains, namely, nobody can claim as a right that a discretionary power
should be exercised in his favour. With such conflicting views from eminent welfare
academics, the question of interaction of law and discretion is one that must be
considered. In Ireland, there has been little discussion on the use of discretion
regarding the discretionary payment of supplementary welfare allowance. However,
in Britain a far more wide ranging debate, has taken place on the inter play between
law and discretion in welfare provision. The U.K. has experimented with the varying
extremes of rules and discretion and in this regard, can act as a comparator with the
less transformative Irish welfare system.
Discretion and Law: The British Experience
In the United Kingdom (U.K.) a far more wide ranging debate has taken place on the
inter play between law and discretion. The U.K. moved from rule guided discretionary
system and while shifting towards a rigid, rule based structure, experimented with
absolute discretion, until finally settling on a discretionary, rule based and cash
limited welfare system.
Supplementary Benefit: Discretion, Discretion, Discretion?
Prior to 1980, the Supplementary Benefit Commission (SBC) paid Supplementary
Benefit (SB)10 as a matter of discretion. Basic supplementary benefit was paid to
those who did not satisfy contributions or other conditions for insurance based
10 As outlined in the Ministry of Social Security Act 1966 ( as amended), Supplementary Benefit
consisted of social assistance payment, corollary to Ireland’s unemployment assi stance, Emergency
Need Payments (ENP) and Emergency Circumstance Additions (ECA), which are coro llary to Ireland’s
Supplementary Welfare Allowance (SWA) under sections 180-182 of the Social Wel fare
(Consolidation Act) 1993.

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