Judge gives green light for judicial review over common law powers of Work and Pensions Secretary

A deputy High Court judge has given a claimant permission to bring a judicial review concerning the Secretary of State for Work and Pensions’ common law powers.

At issue is whether the Work and Pensions Secretary has common law powers to make social security payments beyond statutory rules.

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.

Jeremy Ogilvie-Harris of Cornerstone Barristers is acting for the claimant, instructed by Marcin Brajta of North West London Law Centres, previously Oscar Leyens, now of Southwark Law Centre.

He said 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.

More information on these issues can be found here.

Kirsty Brimelow KC, sitting as a Deputy High Court judge, gave permission to bring the judicial review yesterday (15 April).