Universal Credit rent deductions scheme declared unlawful by High Court

17 January 2025

In R (Roberts) v Secretary of State for Work and Pensions [2025] EWHC 51 (Admin) (16 January 2025) the High Court (Fordham J) decides that the Government’s policy on making deductions from benefit claimants’ Universal Credit is unlawful. It is unlawful because at present the scheme unfairly prevents claimants from making representations, before deductions start, about whether deductions should actually be taken from their benefit for alleged rent arrears.

To comply with the Court’s decision DWP will have to give Universal Credit claimants a say on whether deductions of this kind should be made, before making deductions.

Mr Roberts’ judicial review

In early 2024, the Department for Work and Pensions paid more than five hundred pounds of Nathan Roberts’ Universal Credit to his landlord. This took him completely by surprise.

Mr Roberts’ landlord had asked DWP to make those benefit deductions, saying Mr Roberts was in rent arrears. DWP decided to make deductions, assuming it would be in Mr Roberts’ interests to do so, without ever telling Mr Roberts about the application or asking him what he thought about it. That was not some unusual accident: it was the government’s deliberate policy. DWP makes perhaps hundreds of thousands of deductions from Universal Credit per year without checking with the affected benefit claimant first.

Mr Roberts strongly opposed deductions; he did not agree that he owed his landlord any money; and he was about to move out. He wrote repeatedly to DWP to tell them this, but for months they did nothing. He sent two pre-action letters threatening judicial review, and they still did nothing. DWP did not refund the deductions until after Mr Roberts made his judicial review claim.

The High Court has decided that fairness requires a claimant to know about a deductions application, and be allowed to tell DWP their views on it, before deductions are put into effect.

Note also that while this case concerned rent deductions, it is easy to see how a claimant could argue that the principle of allowing pre-deduction representations should logically apply to other kinds of UC deductions, such as for water or fuel charges.

Challenging the computer

An important and novel feature of the Roberts judgment is that it helps show how to scrutinise the lawfulness of automated, or semi-automated, decision making. It has lessons for claimants and defendants in public law litigation.

The Court holds that DWP’s policy is to ‘direct her decision makers that it is unnecessary to give UC claimants an opportunity to make representations before making payments to landlords’ [72]. It comes to that conclusion even though there is no policy document stating in terms that DWP staff need not contact claimants before making deductions decisions. However, deductions decision makers are told by a computer programme to input certain information, and they are told at the end what the outcome should be. Even if in theory the decision maker could unplug the computer and exercise their own discretion, the reality is that its instructions will be followed. The computer program is in effect a highly directive policy.

A lesson for claimants is that it may be necessary to seek disclosure of information which is not ordinarily sought in judicial review: the key information may lie in the way a computer has been programmed, and therefore may not be visible in the way that other policies are.

A lesson for defendants is that when the policy is a computer program, that may make it unhelpfully (and potentially unlawfully) opaque not just to external observers, but even to the ministers and civil servants responsible for it. In the Roberts case, DWP had to repeatedly correct its own evidence about what the deductions process actually was. Having failed to provide any information at all in the pre-action stage of proceedings, the account of the policy provided in DWP’s summary defence contained a significant omission (which the High Court describes as ‘particularly chilling’ given that the Defendant was at that stage arguing that the claim should not even be examined at a full hearing: ‘permission could have been refused by a Court being denied relevant information’ [21]). DWP made a second attempt to explain its policy in its detailed grounds of defence and witness evidence, apologising for its earlier omission. It then provided a third account shortly before the hearing, having apparently realised that some of what it had said in its second account was still mistaken. During the hearing, the operation of its policy was, remarkably, still unclear (‘… On that crossover point, I was given two different answers during the two-day hearing…’ [21]). DWP had to provide a fourth account after the hearing finished.

Tom Royston acted for Nathan Roberts, instructed by Emma Varley at Bindmans.

This summary is provided for information only. It should not be relied on as legal advice.

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