GMLC campaign volunteer Eleni Founta summarises the recent case of Timson, R (On the Application Of) v Secretary of State for Work and Pensions [2022], in which a disabled woman successfully challenged the DWP for unlawfully taking deductions from her benefits to pay utility debts.
In September 2022, Mrs Timson, a disabled woman, won a judicial review against the Department for Work and Pensions (DWP) over deductions that have been taken from her disability benefits. Those deductions were found unlawful by the judge Mr Justice Cavanagh. Judicial review is a particular kind of legal challenge through which people can challenge public bodies’ decisions, acts and sometimes the failure to act. If found unlawful, these decisions can be changed through ‘remedies’ the court can order.
The deductions were made because Mrs Timson allegedly owed debts to water and energy companies; the deductions are known as Third Party Deductions (TPDs). The DWP decides whether to make a TPD following a request by a utility company in respect of a benefit claimant’s arrears. Under the 1987 Social Security Regulations, there is no legal consent needed on the debtors’ side before these deductions are made, and the sums deducted are paid directly to the creditor. In practice, this has meant that there is no chance for a claimant to dispute a debt before it begins to be paid directly out of their benefits, depriving them of some of their income. There are provisions in the Social Security Regulations that the DWP may only make TPDs if they are in the interests of the claimant’s family and, if the claimant is single, in the interests of the claimant themselves.
Mrs Timson’s case was concerned with deductions of debts owed to water and energy companies. The judicial review succeeded because the judge found that the DWP’s written guidance to decision makers in relation to TPDs is unlawful on two grounds. First, it directs a decision-maker that the question whether a claimant consents to a TPD is not a relevant consideration or material factor, when the true position is that the claimant’s wishes are an important and often determinative consideration. Secondly, it misdirects decision-makers by implying that they do not have an obligation to seek representations and information from the claimant before taking a decision about whether to impose a TPD. In order to act fairly, they will need to contact claimants to ascertain their wishes and to give them an opportunity to make representations. The judge said:
‘In my judgment, a failure on the part of the decision-maker to give the claimant the opportunity to make representations and provide information would be a breach of the obligation of fairness.’
When someone brings proceedings for judicial review, they are seeking ‘remedies’. In Mrs Timson’s case, the judge proposed to give a Declaration as a remedy. A Declaration is an order stating clearly and concisely what the law is, where this is disputed. But what does that mean for benefit claimants? Mrs Timson’s legal representatives are stating that, following the legal challenge, the way that the DWP operates the scheme – and the way that the written guidance is drafted – will need to be significantly altered, specifically by making it clear to DWP decision-makers that benefit claimants should be given the opportunity to make representations and/or provide relevant information prior to the decision to make a deduction. Mrs Timson said:
‘The fact that the DWP now need to seek representations from benefit claimants before making the decision to deduct money from their benefit is the very least that they should have been doing.’
During the cost of living crisis, this win could be very significant, meaning that the DWP cannot continue to make deductions from those on legacy benefits simply because the utility companies have requested it. Between April 2022 and April 2023, there are already limitations imposed on energy suppliers using the Fuel Direct scheme to deduct payments from benefits claimants – the claimant has to request the deduction. Between these limitations and the new judgement, claimants will be in a much stronger position to push back on any utility deductions they cannot afford.
As Mrs Timson was on legacy benefits rather than the more widespread Universal Credit (UC), there has been some debate over whether this judgement will impact on the way deductions are carried out for UC claimants too. We consider that, as the guidance for Universal Credit deductions is framed in very similar language to the legacy schemes, Cavanagh J’s findings are likely to have bearing on UC as well as legacy benefits.
___
GMLC’s welfare rights team supports people on benefits to maximise their income, appeal DWP decisions, and gives them representation at hearings. If you need support with your benefits, you can email us at reception@gmlaw.org.uk or call 0161 769 2244 and leave a message for us to get back to you.
