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Did the DWP miss something? The Chief Commissioner sets out the "Proper Approach to Section 72(1)Requirements"in paras 5 - 10 of CDLA 0492. The decision is dated 30/6/04. There's a lot of really helpful stuff in it, i found...
He holds (para 5) that in considering the proper approach to any Section 72 (1) requirement, the starting point must now be Moyna...
the decision emphasizes the need to consider Section 72(1) in a composite way, "and it is unhelpful to regard the test as a number of stages". (para.10 (iii))
the need to take a broad view is also emphasized throughout the decision. In para 7, the Chief Commissioner held -
"Although the criteria in the various sub-sections of Section 72(1) are discrete and very different, the comments of Lord Hoffman inform the general approach to each. In respect of each, an exercise in judgement has to be made taking "a broad view of the matter", ie taking account of all relevant factors. IN RESPECT OF NONE CAN A DETERMINATION BE MADE UPON AN ARITHMETICAL FORMULA OR BY REFERENCE TO AN INVARIABLE BENCH MARK." (my emphasis, for reasons which will be made clearer.)
In para 10 (iv) the Chief Commissioner states -
"In Lord Hoffman's words, "it is seldom helpful to make additions or substitutions in the actual language he (the author) had actually used." Earlier cases, of both the Commissioners and the courts -which seek to make additions or substitutions need to be considered with very great caution. It is likely that the propositions for which they have been cited in the past are no longer good."
In para 10 (v), some general and uncontentious comments of Lord Denning, reported as R(A)2/80 are put into perspective - neither "clothed with something akin to statutory force" nor comprehensively defining terms in the context of section 71(1).
"It is therefore for a decision-maker....to make a judgement as to whether the relevent criteria are satisfied in any specific case." (para 8)
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Does it matter?
one might think that on receiving this helpful decision the DWP would consider the implications carefully. the complexity of DLA law is self-evident, the need for a broad approach to the composite questions and judgement on an individual case basis is spelled out by the Chief Commissioner.
the quality of DLA decisions has been the subject of much criticism over a lengthy period, generating high levels of appeals, resulting in a high level of overturned decisions, and one could reasonably expect that the DWP were already concerned to take action. did any senior DWP person consider that improved training for decision-makers was appropriate? was it considered and ruled out? did the DWP fail to grasp what the ruling meant? did it issue a guidance circular on the decision? questions....
what has happened in the 8 months since the decision.
no noticeable change in decision-making quality
model submission notes still rely extensively on R(A) 2/80
secret plans to develop a program so that computers can make decisions - see capitalized quote above - and tell me somebody - how does that work, then? oh, and an IBM appeals wizard.
see also quote from para 8. Human judgement is required for these complex decisions, and no artificial intelligence has been developed approaching the subtlety and complexity of human judgement. there are no fixed bench marks or arithmetical formulae, by which a determination can be reached.
why is money being spent to develop software which cannot enable the DWP to make lawful decisions?
if the decision has been made on the basis of a cost-benefit analysis, what figure has been factored in to represent the cost of denial of justice?
(sorry, carol - i bet you wish you hadn't asked... : ) )
jj
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