The government was not just flawed in its decision-making but was so wrong that its decisions were invalid and therefore must be set aside, the Upper Tribunal has ruled in twin test cases against the secretary of state for work and pensions ( Secretary of State for Work and Pensions v Dukes and Secretary of State for Work and Pensions v Wheatland (CE/366/2013 and CE/705/2013)).
Mr Dukes challenged the government’s decision to shift him from incapacity benefit to employment and support allowance (ESA) without him having a face-to-face assessment. Mr Wheatland was in receipt of ESA but a decision was made on his capability for work status without the assessment.
The tribunal held that the decision makers were unable to explain their scoring in either case, and that this rendered their decisions invalid.
Morayo Fagborun Bennett,of Hardwicke chambers, junior counsel for Dukes, says: “It is rare for the courts and tribunals to hold that the decision made by the government is invalid or unlawful, as opposed to valid but wrong.”
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