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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Blundel & Ors, R (On the Application Of) v Secretary of State for Work And Pensions  EWHC 608 (Admin) (17 March 2021)
Cite as:  WLR(D) 172,  PTSR 1342,  EWHC 608 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
(1) GAVIN BLUNDELL
(2) MARK BROOKS
(3) DENIS LAIRD
(4) WILLIAM SLATER
|SECRETARY OF STATE FOR WORK AND PENSIONS
And Between :
|THE QUEEN on the application of
|SECRETARY OF STATE FOR WORK AND PENSIONS
Mr Richard Drabble QC and Mr Michael Spencer (instructed by Hackney Community Law Centre) for the Claimant in the second claim
Mr Jason Coppel QC and Ms Joanne Clement (instructed by Government Legal Department) for the Defendant
Hearing dates: 12th and 13th January 2021
Crown Copyright ©
Mr Justice Kerr :
Relevant statutory provisions
"14. In broad terms, the court must make a collection order relating to the payment of the sum due (whether or not an application for benefit deductions has been made). If the court has not made an attachment of earnings order or application for benefits deductions, the court must state the payment terms (being either a term requiring P to pay the sum within a specified period, or terms requiring P to pay the sum due by instalments of specified amounts on or before specified dates) (paragraph 14). If the court has made an attachment of earnings order or application for benefit deductions, the collection order must state the reserve terms (paragraph 15 of Schedule 5). These are essentially the payment terms which have effect if the application for benefit deduction fails. An application for benefit deductions will "fail" if it is withdrawn by the Court or for some reason the Secretary of State decides not to make deductions (see paragraph 17).
15. The fines officer and/or the magistrates' court have a broad range of powers to vary the payment terms at any time, including a power for P to pay the sum due by specified instalments, to vary the number of instalments and to vary the amount of any instalment:
(1) on an application by P to the fines officer if there has been a material change in P's circumstances or P is making further information about his circumstances available (paragraph 22)
(2) on an appeal to the magistrates' court against any decision of the fines officer (paragraph 23)
(3) on a fines officer making a referral to the magistrates' court if an individual has defaulted on payment terms (paragraph 26);
(4) on an appeal to a magistrates' court against a further steps notice (paragraph 39)
on a fines officer making a referral to the magistrates' court under paragraph 42, where a magistrates' court has the power to exercise any of its standard powers in respect of persons liable to pay fines. This includes powers to remit the fine, reduce the fine, withdraw the benefits deduction application and/or agree new payment terms."
"provision as to the calculation of such sums (which may include provision to secure that amounts payable to the offender by way of universal credit, income support, a jobseeker's allowance, state pension credit or an employment and support allowance do not fall below prescribed figures)...".
"(1A) Subject to paragraphs (1C) and (1D) and regulation 7, where the Secretary of State receives an application from a court in respect of an offender who is entitled to universal credit, the Secretary of State may deduct from the universal credit payable to the offender an amount permitted by paragraph (1B) and pay that amount to the court towards satisfaction of the fine or the sum required to be paid by compensation order.
(1B) The amount that may be deducted under paragraph (1A) is any sum which is no less than 5 per cent. of the appropriate universal credit standard allowance for the offender for the assessment period in question under regulation 36 of the UC Regulations but no greater than £108.35.
(1C) No amount may be deducted under paragraph (1A) where it would reduce the amount of universal credit payable to the offender to less than 1 penny."
"Part 5 of the Claims and Payments is concerned with deductions from benefits to make payments to third parties. Regulation 60 states that deductions may be made from benefit and direct payments may be made to third parties on behalf of a claimant in accordance with Schedule 6 and 7. Schedule 6 governs deductions from benefit and direct payment to third parties."
"[t]here is an overall maximum amount that can be deducted from someone's [UC]. This is the equivalent [sic] to 30% of the benefit unit's [UC] Standard Allowance. This limit is set to reduce the risk of claimants facing hardship because of the amount being deducted from their [UC] payment."
"The Deductions Policy has never provided for the reducing deductions for court fines on the grounds of financial hardship. This is because the court fine system is considered as a whole. If an individual feels that the court fine deductions made from benefits are causing financial hardship, they can and should apply to the fines officer/magistrates court to remove the deductions from benefits order (and enter into direct arrangements with HMCTS to repay the fine). It is through this route than an individual's particular circumstances, including financial circumstances, will be considered by a fines officer/magistrates' court and an appropriate repayment plan agreed."
"Up to three deductions can be taken at a time which will add up to the maximum of 30%. So, if only one deduction is taken, it will be 30% but if three are taken they could all be at 10%. If more than three deductions are requested, they will be prioritised and only the top three will be payable . Court financial impositions are ninth in the list of priority."
"The rate of repayment through a deduction is set by the DWP. This rate will not be known by the court upon imposition so the court cannot find it inappropriate or impractical purely on the basis that they do not know what the deduction rate will be or they are concerned the weekly amount might be higher than the court might have imposed. ..
it is important for magistrates to remember that if a DBO is made, the deduction rate will be fixed by DWP not the court. The magistrates should therefore not state in open court what figure or percentage is likely to be deducted.
The court does not have the power to vary the deduction rate. However, the court may see applications coming back before them whereby offenders are applying for their DBOs to be removed and replaced with payment terms. The court must scrutinise these applications carefully, as a DBO is one of the most effective fine enforcement tools for people on [UC]. It should be remembered that if there are other deductions are still being taken [sic] even if a DBO is removed in relation to a court fine payment, then the maximum of 30% will still be taken for the other deductions. The court should conduct a full means enquiry and scrutinise the offender's income and outgoings, determining what are essential and non-essential payments. ."
Issues, Reasoning and Conclusions
First ground: fettering of discretion
"has not acted unlawfully in adopting the Deductions Policy in circumstances where an individual's particular financial circumstances / financial hardship will be considered by another actor within the same fines collection process i.e. by the Magistrates' Court or the fines officer."The Secretary of State accepts in her skeleton that "the power to make deductions from benefits is different to a power to enter into a direct repayment agreement" but insists that "the purpose [her italics] of both approaches is to enforce the social obligations in question and to collect court fines"; and that it is lawful to decide that it is by this route that an individual's particular circumstances will be considered and not by consideration on an individual basis of the appropriate rate of deductions from UC.
"As we have seen the policies on humanitarian protection and discretionary leave are published and they contain the 12 months' threshold. As I have concluded, that length of sentence makes an offence serious. That sentence is fixed by the court, which will have considered the seriousness of the offending, and in doing so the aggravating and mitigating circumstances: see the Sentencing Guidelines Council's guideline 'Overarching Principles: Seriousness' (2004). It seems entirely rational for the Secretary of State to adopt the court's sentence as to whether the threshold of seriousness has been reached and for her not to have to reinvestigate the background features of the offending to decide whether it was, in fact, serious. The court has already done that. To my mind a 12 months' sentence threshold is a reliable and rational measure of seriousness, which has been set by a court, and is not an unlawful fetter on the Secretary of State's discretion."
Second ground: irrational policy
Third ground: disability discrimination
Fourth ground: public sector equality duty