Discretion And Law In The British And Irish Social Welfare Systems

• Author: Liam Thornton
• Position: BCL (International) IV
• Pages: 116-157

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DISCRETION AND LAW IN THE BRITISH AND IRISH SOCIAL

WELFARE SYSTEMS

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

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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

circumstances.

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.

34.

8 Ibid. p. 35

9 Ibid. p. 36

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DISCRETION AND LAW IN THE BRITISH AND IRISH SOCIAL WELFARE SYSTEMS

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.

II

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.