The Administrative Court to consider the existence and extent of the Secretary of State for Work and Pensions’ common law powers
Public Law and Judicial Review
Today, the Administrative Court is considering whether to grant permission to a claimant to bring a judicial review concerning the Secretary of State for Work and Pensions’ common law powers.
The Case
The claimant is a British citizen who arrived in the UK as a refugee from Sudan. In December 2023, his 18-month-old daughter, living in Sudan with the Claimant’s wife and her twin brother, developed abdominal cancer. She was unable to receive treatment in Sudan due to the civil war. It was necessary for the family to travel to Egypt for treatment.
The claimant travelled to Egypt in February 2024 to help. Due to complications with his daughter’s treatment, and a shortage of blood, the claimant remained in Egypt for three months. As a result, the claimant’s universal credit was suspended and terminated by operation of s. 4(1)(c) of the Welfare Reform Act 2012. It is common ground that he does not meet the statutory exemption for temporary absence from Great Britain where a family member is receiving medical treatment, because his daughter did not “normally reside” with him: reg. 11(3)(a) Universal Credit Regulations 2013.
Key Facts – Judicial Review on Common Law Powers
- Update: On 15 April 2025, Kirsty Brimelow KC sitting as a deputy high court judge gave the claimant permission to bring this judicial review.
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Court: Administrative Court
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Issue: Whether the Secretary of State for Work and Pensions has common law powers to make social security payments beyond statutory rules.
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Claimant: British citizen and former refugee from Sudan, whose daughter required urgent medical treatment abroad.
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Context: His universal credit was terminated after spending three months in Egypt helping his daughter receive cancer treatment.
- Jeremy Ogilvie-Harris acts for the claimant, instructed by Marcin Brajta of North West London Law Centres.
Common Law Powers and Fettering of Discretion
The judicial review raises two important constitutional issues. First, whether the Secretary of State has a common law power to make payments of social security in the circumstances. Second, whether the principle of fettering of discretion applies to the power.
On the first issue, the defendant argues that there is no such power, as its exercise would undermine the legislative scheme, applying Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 and Ex p Fire Brigades Union [1995] 2 AC 513. The claimant submits that those cases concerned the Crown avoiding liability to pay compensation whereas the exercise of the power in these circumstances would be supplementing, rather than undermining, the scheme, relying on R. v Secretary of State for the Home Department, Ex parte Northumbria Police Authority [1988] 2 W.L.R. 590. In R (Hooper) v Work and Pensions Secretary [2005] 1 WLR 1681 (HL(E)), Lord Hoffman, obiter, commented that there was “a good deal of force” in the submission that there was a common law power which could supplement the legislative scheme.
On the second issue, the defendant relies on R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 W.L.R. 2697 which held that fettering of discretion did not apply to the prerogative power to provide diplomatic assistance to a British national in the form of paying for lawyers. The claimant argues that Adath Yisroel Burial Society v Chief Coroner of England and Wales [2018] EWHC 969 (Admin); [2019] Q.B. 251 identified an exception to the Sandiford rule, for existing and residual common law powers, and that the Secretary of State is exercising such a power.
The Administrative Court is due to decide whether the judicial review is arguable.
Jeremy Ogilvie-Harris is representing the claimant unled, funded by legal aid and instructed by Marcin Brajta of North West London Law Centres and previously Oscar Leyens, now of Southwark Law Centre.
About Jeremy
Jeremy is a barrister at Cornerstone Barristers specialising in public law and human rights. Prior to becoming a barrister, Jeremy gained experience in constitutional and administrative law as Public Law Supervisor at Hackney Community Law Centre, and by teaching Public Law at Queen Mary University of London, volunteering at Liberty and completing an LLM in public law at UCL with distinction. Jeremy also played a role in the amendment of section 10 of the Nationality and Borders Act 2022, during its passage through the House of Lords, which ensured that the Act provided for a greater level of procedural fairness in citizenship deprivation decisions.
Update: On 15 April 2025, Kirsty Brimelow KC sitting as a deputy high court judge gave the claimant permission to bring this judicial review.
