The Right to a Hearing Before Termination of Benefits (Rev

The Right to a Hearing Before Termination of Benefits (Rev.19 Apr.2001)

and the Human Rights Act

by Jonathan M. Stein[1]

Advocates and the courts have yet to confront the extraordinary inequity in the welfare system’s adjudication of benefits whereby the impartial tribunal hearing is held well after the loss of benefits callously harming the large majority of innocent appellants who obtain reversals of the adverse benefits decision. The adoption of the Human Rights Act and its article 6 right to a “fair hearing” should now give an opportunity to redress this long-standing injustice in Britain’s welfare state by establishing that a “fair” hearing can only mean a timely one offered before benefits termination.

The historic propensity of the Department of Social Security (DSS) and its Benefits Agency (BA) to make erroneous decisions adverse to claimants, coupled with unconscionable delays in administrative appellate decisions and the irremediable harm experienced during the pendency of appeals, especially for but not limited to means tested benefit terminations or reductions, should together provide the impetus for developing article 6 law to establish a basic human right to an opportunity for a hearing before the loss of benefits. This has been the constitutional due process of law right and 30 year accepted and workable practice for millions of low income beneficiaries of welfare benefits in the United States under the 1970 U.S. Supreme Court decision in Goldberg v. Kelly.[2]

Critical to convincing British courts to establish this right will be the pattern of evidence of erroneous and illegal benefits adjudications. This is reflected most graphically in the continuing high reversal rates at tribunals, averaging 62.4% for the close to three dozen categories of DSS benefits appealed to tribunals. For Disability Living Allowance, reversals have been 65.4%; Incapacity Benefit, 65.5%; Jobseeker’s Allowance, 63.5%; and Income Support, 60%.[3] One can thus assume that a large majority of those losing an going entitled benefit are innocent victims of administrative error which could have been avoided had an opportunity for a hearing been afforded before the adverse decision took effect.

The unreliability of BA adjudications, calling for greater procedural protections, is also found in the auditing of benefits decisions for meeting adjudication standards undertaken by the Chief Adjudication Officer at DSS who, pursuant to the Social Security Administration Act 1992, issued his fourteenth and last annual report for 1999. This report revealed that 35% of 130 new and repeat Income Support claims monitored showed incorrect adjudications, and 34% of 130 Income Support and Jobseeker’s Allowance review decisions had incorrect adjudications. Insufficient or lack of evidence for the adjudication was the most common error in these decisions.[4]

Equally critical are the delays experienced between adverse decision and appellate remediation of the error or illegality. DSS data reporting an average delay of 27 weeks, or about 7 months, from lodgment of appeal to first hearing,[5] is itself shocking yet understates the delays by not accounting for additional delays from adverse decision to lodgment arising from lack of knowledge of appeal rights or pursuit of a revision in lieu of appeal, and further ignores post-hearing delays in implementing a decision through a payment. Delays in benefits appeals have been the subject of continuing scrutiny and criticism by the Select Committee on Social Security as “unacceptable”, but without substantial alleviation of the problem.[6] This further suggests that only with judicial intervention will fairness be assured in the DSS appeals system.

Most critical though to judicial scrutiny of this policy should be the harm experienced by those losing subsistence benefits critical to survival–harm that it is the very statutory purpose of a DSS benefits scheme to safeguard against. Typical of the harm experienced by appellants going without benefits during the pendency of the appeal were those of two lone parents interviewed after losing all Income Support on alleged grounds of cohabitation:

One, a mother of three from Eccles, Manchester lost all her IS of £120/wk. resulting in the mother’s increased anxiety, loss of a stone in weight, and inability to enter a job training program; lack of food for the family; phone service cut off; Housing Benefit, Council Tax Benefit, and passported health benefits lapsing; two older children going to school with ill fitting clothing and no school uniforms; and a 12 year old child kept out of school when school trips and cooking classes required fees. She easily won her hearing, but her family had been denied a subsistence grant for 5 months, despite the intervention of her MP and a welfare rights worker.

Another lone mother of six children from Hull, upon being terminated from her £177.20/wk/ IS grant, had her eldest daughter leave the house so “there would not be another mouth to feed”; she took light bulbs out of her children’s rooms to reduce electric bills; the infant, six months old, lacked adequate clothing and nappies; her council served her with a repossession notice; and the mother “cried a a lot”, was under great stress and was constantly angry at her children. The tribunal chair, reportedly calling the cohabitation case “absolutely ridiculous” with “no real evidence”, found in the mother’s favour after a ten minute hearing at which the Benefits Agency did not even appear to defend its decision.

Here, too, the Select Committee on Social Security has documented harm, in terms of aggravated stress and risk of serious financial hardship, resulting from the deprivation of income replacement benefits like IS and JSA during the pendency of an appeal.[7] The same Committee had similarly documented the harm flowing from the “shocking aspect of the BIP [Benefit Integrity Project],” terminating Disability Living Allowance to vulnerable and needy people who “depend for their living and dignity” on this non-means tested benefit.[8]

This same constellation of factual circumstances led the Supreme Court in Goldberg to hold that the opportunity for a pre-termination evidentiary, oral hearing was constitutionally required. The Court reasoned that,

the interest of the eligible recipient in uninterrupted receipt of

public assistance, coupled with the State’s interest that his payments

not be erroneously terminated, clearly outweighs the State’s

competing concern to prevent any increase in its fiscal and admini-

strative burdens....[t]he stakes are simply too high for the welfare

recipient, and the possibility for honest error or irritable misjudgment

too great, to allow termination of aid without giving the recipient a

chance...to be fully informed of the case against him so that he may

contest its basis and produce evidence in rebuttal.’[9]

The “crucial factor” identified by the Goldberg Court that distinguished this setting from the myriad of situations where the government terminates some governmental benefit, contract, employment or tax exemption, was that this “termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits...his situation becomes immediately desperate [and] [h]is need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.”[10] The Court acknowledged that pre-termination hearings involved some greater expense, but stated that these expenses could be minimized through prompt pre-termination hearings and skilful use of staff and facilities.[11]

That the reasoning of the Goldberg Court should have some resonance among courts in Britain is evidenced by the Court of Appeal’s 1996 decision in R v Secretary of State for Social Security, ex parte JCWI which held as ultra vires regulations that had removed the entitlement to urgent cases payments from those seeking asylum.[12] Critical to the Court’s judgment were the circumstances of the asylee appealing the adverse asylum decision faced with the “intolerable dilemma” of being deterred from pursuing their claim to refugee status via appeal or pursuing the appeal “but in a state of utter destitution.”[13] The impact of the benefits termination in undermining the ability to pursue the appeal, a point made in Goldberg above, was also emphasized in a concurring opinion in the asylum case. Thus the effect of denying

...the basic means of sustaining life itself...render[s] [the] ostensible

statutory right to a proper consideration of [the] claims...valueless in

practice by not making it merely difficult, but totally impossible for them

to remain here to pursue those claims.[14]

The asylum case has a number of unique and distinguishable aspects, including its not addressing a Human Rights Act that had not then become law here, but is cited to show the potential receptivity of Goldberg arguments to courts here.

A challenge that the lack of a pre-termination hearing denied the right to a “fair hearing” under article 6 would require an understanding that fairness must be defined within specific contextual settings. Article 6 should thus be read to require that a tribunal hearing be afforded at a time that is meaningful for someone dependent upon a subsistence benefit for his or her survival.[15] A broad and purposive interpretation of the “fair hearing” guarantee that would be necessary to recognize a prior hearing right is in keeping with decisions of the European Court of Human Rights which have held that:

In a democratic society...the right to a fair administration of justice

holds such a prominent place that the restrictive interpretation of

art. 6(1) [urged by the state] would not correspond to the aim and

purpose of that provision.[16]

Thus the effort to establish a prior hearing right should be enhanced by prior expansive interpretations of article 6(1) that have recognized that administrative justice is a human right.[17]

Analysis by a court of an asserted right to a pre-termination hearing will undoubtedly address the availability of interim payments from the DSS during the pendency of the appeal. The harshness of the current scheme was sharpened by regulations amended in 1996 which greatly restricted, and perhaps effectively prohibited the provision of interim payments pending appeal. Such payments on account are no longer applicable “unless the Secretary of State is of the opinion that there is entitlement to benefit.”[18] On the face of this regulation, as the agency has just decided the claimant is no longer entitled to benefits, there would appear to be little likelihood that an interim payment would ever be available to an appellant.[19]

Where hardship is present advocates should regularly request interim payments in benefits termination or reduction appeals if only to “exhaust” this avenue to compile a record for judicial review. In addition to arguing that article 6 requires a pre-termination hearing, one might alternatively argue that article 6 requires that the power to make interim payments be made liberally, rendering ultra vires the restriction imposed by the regulation above on payments pending appeal.[20] One might note the arbitrariness of an interim payments scheme which currently provides that a person appealing a decision that he or she is not entitled to Incapacity Benefit or Income Support as being capable of work, can receive, pending the appeal, 80% of the IS personal allowance for a single claimant,[21] while someone appealing another benefit termination, e.g. an IS termination, for cohabitation, as an example, receives no support.

Relevant also to the recurring presence of harm in these cases might be the asserted government claim that a termination of benefits does not lead to deprivation because of the availability of local authority support to assist children in need under section 17 of the Children’s Act 1989, and residential accommodations and food assistance for those in need of care and attention under section 21 of the National Assistance Act 1948. One would thus have to be prepared to critique the premise of the availability of benefits such as the unlimited discretion, cumbersomeness, and other limitations of payments under the Children’s Act, and similar limitations under the National Assistance Act.

Other litigation theories might be available such as the possible claim that under principles of natural justice, there are “legitimate expectations” among those who had previously been found entitled to benefits that the government will not make erroneous or illegal termination decisions against them nor act to deprive them of necessities of life without an opportunity to be heard at a hearing.[22]

Litigation of a right to a pre-termination hearing may not only have favourable knock-on effects for liberalization of interim payments policies, but might also lead to other less meaningful yet ameliorative remedies such as provision for expediting appeals where hardship is alleged. More broadly, the issue may also help determine whether the Human Rights Act will be a critical constituent in the future development of poverty law in Britain and fundamental constitutional protections for the poor.

[1]The writer is an Atlantic Fellow in Public Policy, awarded by the British Council, and hosted by London School of Economics, Centre forthe Analysis of Social Exclusion and the Child Poverty Action Group, on a year’s leave as General Counsel, Community Legal Services, Inc. in Philadelphia.

[2]397 U.S. 254 (1970) (per Justice Brennan) (for decision see, Human Rights jurisprudence of the European Court and now courts here, have established the legitimacy in looking at comparative jurisprudence, including constitutional law of the United States, in deciding important Convention or HRA points of law. See, e.g., Brown v Procurator Fiscal (2000) SLT 379 (Appeal Court, High Court of Justiciary) (

[3]These are for hearing outcomes where both the appellant and a representative appeared. DSS, Quarterly Appeal Tribunal Statistics, June 2000, p.13. Percentages would be higher if reversals at the Commissioners and judicial review levels were included. A further account of erroneous decision-making would also include adverse decisions reversed through revisions or supersessions without a tribunal appeal request lodged.

[4]DSS, Annual Report of the Chief Adjudication Officer 1999, pp.3,7 and Annex 5 ( . The responsibility for reporting on decision making standards in the Benefits Agency and Employment Service as of 29 November 1999 was taken over by the respective Agency Chief Executives, which may well mean that this revealing data may no longer be collected or, equally important, be readily available to the public

[5]DSS Analytical Services Division, for quarter ending June 2000.

[6]See, e.g., House of Commons Select Committee on Social Security, Eighth Report–The Modernization of Social Security Appeals, Session 1998-99, paras 6-13.

[7]Id., para 7. Because circumstances might change during the appeal, and tribunals since May 1998 can no longer consider changes since the appeal was lodged, the Committee reports that long delays can also mean that the long-awaited hearing does not fully resolve the matter, id., which further undermines the right to a fair hearing.

[8]House of Commons Select Committee on Social Security, Fourth Report–Disability Living Allowance, Session 1997-98, para 62. Evidence was taken documenting the “extreme distress and anxiety” and the “fear and desperation” caused by the withdrawal of on-going disability benefits. Id. paras 61-62. Although highlighted through an unusual parliamentary scrutiny of benefit termination, improper terminations of DLA continue into the present but without the media and parliamentary oversight that the BIP generated. Thus, this past year, a disabled man in Devon was almost driven to suicide when the BA terminated him from the middle rate of care and higher mobility, including passported Motorbility scheme, leaving him with no DLA benefits and loss of his only means of transportation. Interview with Steve Gale, Disability Information Service (Torbay), 18 Dec. 2000.

[9]397 U.S. 254, 266 (1970).

[10]397 U.S. at 264. The Court rejected the government’s provision of a post-termination hearing, approving a lower court’s description of terminations before hearings as “unconscionable” when the recipient is “in the face of..’brutal need’....” Id. at 261.It also implicitly rejected the adequacy of the post-termination restoration of back benefits. Courts after Goldberg have been similarly cognizant of this reality, recognizing, for example, that “suffering months of delay in receiving income on which one has depended for the very necessities of life cannot be fully remedied by the restoration of back benefits”. Day vs. Shalala, 23 F.3d 1052, 1059-60 (6th Cir. 1994).

[11]397 U.S. at 267. The fact that since Goldberg, 50 state welfare departments, and the perhaps the largest benefits adjudication system in the world, that of the U.S. Social Security Administration, have for three decades been successfully implementing pre-termination hearings, suggests that the administrative and fiscal burdens counterargument should carry little weight.

[12][1996] 4 All ER 385, [1997] 1 WLR 275. The decision was quickly overturned through passage of primary legislation by the Parliament.

[13]4 All ER at 402 (Simon Brown LJ.).

[14]4 All ER at 402 (Waite LJ.).

[15]The Goldberg Court in this regard cited the classic corollary for the due process principle of an “opportunity to be heard” that the hearing must be “ ‘at a meaningful time and in a meaningful manner.’ Armstrong vs. Manzo, 380 U.S. 545, 552 (1965).” 397 U.S. at 267.

[16]Delcourt v Belgium (1970) 1 EHRR 355 para 25. See also Moreira de Azeredo v Portugal, ECHR (1990) Series A, No. 189 (1990) 13 EHRR 74 (no justification for interpreting Article 6(1) restrictively).

[17]See Bradley, “Administrative Justice: A Developing Human Right?” (1995) 1 EPL 347.

[18] Reg 2 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988, as amended by reg 2(1A) inserted by reg 10(b) of S.I. 1996/30.The apparent reason for the change was to end requests for interim payments in habitual residence cases, but the regulation clearly reaches much more broadly.

[19]Although this is the view of welfare law specialists, this writer has urged advocates to seek interim payments pending appeal as a matter of zealous advocacy of a client’s interests and to test the system, if only to document its failings. As a result, one Hull welfare rights worker, on requesting interim payments in an IS cohabitation appeal, claiming that the suspension of IS before a hearing contravened the Human Rights Act fair hearing article, did obtain interim payments from the Benefits Agency (the decision apparently rendered by someone other than the person who had made the initial decision). See LASA website,