Fairness (R (Timson) v SoS for Work & Pensions (2022) EWHC 2392 (Admin))

September 26th, 2022

In R (Timson) v SoS for Work & Pensions (2022) EWHC 2392 (Admin) Cavanagh J considered the case-law authorities on the circumstances in which written guidance to decision makers may render unlawful the exercise of statutory discretion, the test for judicial review of a policy at common law, the Padfield and Tameside obligations, and, from para 150,  the fairness obligation. He reiterated that the rule is that, BEFORE a statutory purpose is exercised, ANY person who FORESEEABLY would be SIGNIFICANTLY DETERIMENTALLY AFFECTED should be given the OPPORTUNITY TO MAKE REPRESENTATIONS IN ADVANCE unless (1) the statutory provisions concerned expressly or impliedly provide otherwise or (2) the circumstances in which the power is to be exercised would render it 9i) impossible, (ii) impractical or (iii) pointless, any argument in support of which should be VERY CLOSELY EXAMINED. A Court will be SLOW TO OLD that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute. Cavanagh J considered common law claims and ECHR rights. As to the latter, he considered whether the claimant was a “victim” for the purposes of Section 7 of the Human Rights Act 1998, and whether there was a breach of the claimant’s rights under Article 1 of the First Protocol, in the context of social security benefits. In a control of use case, just as in a deprivation or expropriation case, a FAIR BALANCE must be struck between the demands of the general interests of the community and the REQUIREMENT of the protection of the individual’s FUNDAMENTAL RIGHTS. The rules of domestic law must be sufficiently ACCESSIBLE,  PRECISE and FORESEEABLE. The fact that the case is concerned with a control of use rather than deprivation of property may be relevant, for example, if may have an impact upon the FAIR BALANCE ISSUE. The fair balance test is addressed at paras 258-261 inclusive. Cavanagh J also considered the question sof “other status”  and comparator for the purposes of Article 14 of the ECHR.

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