Administrative Justice: Discretion and Procedure in Social Security Decision-Making

Abstract

Abstract Studies of the delivery of social security in Britain and the United States have been dominated over the past twenty-five years by two related concerns: the operation of discretion and the structure of the appeals system. However, despite its prominence, the way in which discretion has been treated in social security research has been limited. In essence the elements of British social security that have been described as discretionary are those (I) not covered in legislative rules (either primary or secondary legislation), and (2) those designed to address the exceptional needs or circumstances of claimants. In 1990 this means essentially that discretion is only discussed in the context of the Social Fund,1 introduced in 1988 as a system of loans and grants to cover claimants’ exceptional needs. This is a very narrow conception of discretion, since most a priori definitions make no reference either to statutory regulations or to exceptional needs. It also implies a clear distinction between rules and discretion. In contrast, definitions of discretion in the academic literature recognize its relationship to rules and its relevance for all types of decision-making and all the stages in a decision-making process (Davis 1969; Hawkins 1986).