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

TY - JOUR

T1 - Forms of fettering

T2 - application forms and the exercise of discretion in the welfare state

AU - Meers, Jed Graham

N1 - This is an author-produced version of the published paper. Uploaded in accordance with the publisher’s self-archiving policy. Further copying may not be permitted; contact the publisher for details.

PY - 2020/4/12

Y1 - 2020/4/12

N2 - 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.

AB - 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.

U2 - 10.1080/09649069.2020.1751936

DO - 10.1080/09649069.2020.1751936

M3 - Article

SN - 0964-9069

VL - 42

SP - 221

EP - 242

JO - Journal of Social Welfare and Family Law

JF - Journal of Social Welfare and Family Law

IS - 2

ER -