Supplementary memorandum submitted by
the Social Fund Commissioner (SF 24A)
We need to correct the final sentence of the
response to this question. Where an office is meeting only the
"highest of high priorities" and this is supported by
budgetary evidence, Inspectors are more likely to confirm decisions.
However, neither the Secretary of State's directions nor guidance
make any reference to "highest of high priorities".
This raises some issues about current practice that we intend
The following is a list of the District Offices
who as far as the IRS is aware have given guidance to decision-makers
that the grants budget can meet only the "highest of the
Birmingham North West
Cardiff West and Vale
Mercia Operations West
Solent and Forest
The guidance to decision-makers in most other Districts is
that the grants budget can meet high priorities. However, IRS
casework suggests that this is not what happens in practice. Inspectors
regularly see cases that are deemed not to meet the qualifying
conditions of Direction four when clearly the conditions are met;
or needs that are given medium or low priority when the need is
high priority. Although not conclusive, the indications are that
it is pressures on the budget that drives such decisions. In cases
of this type Inspectors will substitute a decision and award the
high priority needs. This point is explained in paragraph 18 of
our written submission and in the transcript in response to question
Although the decision on priority is discretionary, the discretion
must be exercised reasonably. The practice of re-designating priority
because of budget pressures would not constitute a reasonable
exercise of discretion if the evidence shows that the needs are
high priority. Priority has to be decided on the basis of the
applicant's circumstances and with particular regard to the nature,
extent and urgency of the need. The budget is not a relevant factor
in deciding priority. Only after priority has been decided should
the decision-maker have regard to the state of the budget to decide
whether it can meet the level of priority assigned to the applicant's
The final sentence is not complete. The point that we wished
to make here is as follows:
Given that there are many more offices that say they can
meet all high priorities than there are who say they can only
meet the highest of high priorities, the greater pool of cases
and consequently substitutions arise from the former.
R v Secretary of State for Social Services and Social
Fund Inspector, ex p. Stitt, Sherwin and Roberts (February 21,
1990), D.C. pp. 16-22 and 23-28.
The challenge in the Roberts case concerned the Secretary
of State's guidance given for the purpose of controlling and managing
the budget allocation. The primary legislation made the budget
no more than a relevant consideration. However, its consideration
was subject to the Secretary of State' directions and guidance.
The Secretary of State had not issued any directions about the
budget. But he had issued guidance.
The Courts made it clear that directions are binding but
guidance is not. Guidance is to be taken into account and cannot
compel a particular decision. The guidance was declared unlawful
as it was written in the mandatory language of direction rather
than in the language of guidance.
Following the judgment, the primary legislation was amended
to give the Secretary of State an express power to issue directions
with respect to the control and management of the budgets. Under
this power the Secretary of State issued directions 40-42 which
require that the budget must not be exceeded.
Although the IRS is not actively considering changes to introduce
oral hearings, it is actively seeking to improve the paper system
to enable greater understanding and more effective participation
in the review process.The improvements involve sending the applicant
a list of the facts upon which the Inspector's decision will be
based and an explanation of the important issues to be decided.
At the same time the Inspector will ask questions to elicit other
relevant information and invite the applicant to comment on the
facts and provide any additional information he considers to be
Questions 148 and 149
We would like to clarify a couple of points here:
The Commissioner as the head of the Independent
Review Service for the Social Fund appoints Social Fund Inspectors
to conduct independent reviews of decisions made at the Benefits
The DSS designs and issues application forms and
it is their staff who give advice to social fund applicants and
not the Commissioner's staff.
for Sir Richard Tilt, Social Fund Commissioner
22 February 2001