Forms of fettering: application forms and the exercise of discretion in the welfare state

ABSTRACT

Application forms are often the compulsory interface between citizens and their social rights. Applicants for support must navigate the questions, checklists and blank spaces in often long, detailed documents to assert their social entitlements. Given their ubiquity and the central role they play in the administration of the welfare state, it is perhaps surprising that they have been neglected in favour of a focus on other documentation, principally policy and guidance. This paper argues that the non-fettering ground of review – a principle whose jurisprudence is tied to the design and use of policy – also engages application forms. Through an analysis of 271 application forms used to administer the localised Discretionary Housing Payment scheme in England, three examples of their fettering potential are provided: the imposition of exhaustive criteria; requiring the applicant to self-classify or disclose irrelevant considerations; and constraining responses through tied evidential requirements. By arguing that the non-fettering ground should not limit itself to one kind of document (policy) when administrators are so reliant on another (application forms), the paper’s broader agenda is to argue that principles of good administration should apply to all documentation used to administer social entitlement.

KEYWORDS:

• Discretion
• fettering
• documentation
• discretionary housing payments

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. See Reg.8(1) and Schedule Two, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013/380. Telephone applications are only possible under circumstances laid out in Reg.8(2).

2. In Scotland, DHPs are a devolved matter and the mechanics of the scheme are different. Here, the Scottish Government provides additional funds to local authorities over and above those issued by the UK Government’s Department for Work and Pensions.

3. The author thanks Sophie Earnshaw and Mike Spencer of the Child Poverty Action Group for sharing the data they collected in 2015.