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Whether DWP negligence in the taking of decisions, and delay in implementing decisions, is actionable under common law duty of care
New High Court judgment

02 August, 2010

In a new judgment, the High Court has considered whether DWP negligence in the taking of decisions, and delay in implementing decisions, is actionable under a common law duty of care.

In Murdoch v Department for Work and Pensions [2010] EWHC 1988 (QB) (30 July 2010), Mr Murdoch's awards of incapacity benefit and income support ceased in April 2002 after he failed to attend a medical examination. Mr Murdoch stated that he had not attended because letters about the medical examination had been sent to the wrong address and, in July 2002, the DWP revised its incapacity decision so as to award benefit from the date it had ceased in April. However, there was a considerable delay in putting the incapacity benefit and income support back into payment, and paying the arrears due.

Mr Murdoch made a claim for damages in the County Court on the grounds that the delay in payment of benefit amounted to negligence on the part of the DWP, both in sending letters about the medical appointment to the wrong address and failing to put the July 2002 decision into effect in a reasonable time. He said that he had had to borrow money from an unregulated money lender as a result of the negligence, and had incurred a debt which was by no means covered by the £799.34 'special payment' he had received from the DWP under its Financial Redress for Maladministration scheme.

With his claim for damages against the DWP having been struck out by a County Court on the basis that there was no duty of care in the matters complained of, Mr Murdoch then appealed to the High Court.

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Having reviewed relevant case law, Mr Justice Walker states that is clear from the Court of Appeal judgment in Rowley that, in relation to the operation of a statutory scheme, the common law can only impose a 'duty of care' where to do so would be consistent with that statutory scheme.

Mr Justice Walker goes on to hold that, following the Court of Appeal judgment in Jones v Department Of Employment [1989] QB1, negligence in the taking of decisions within section 17(1) of the Social Security Act 1998 cannot be actionable on the basis of a common law duty of care, because those decisions are made 'final' by that section and are thus 'protected decisions'.

Having noted that it was common ground that both the April decision and the July decision in the present case were 'protected decisions', Mr Justice Walker goes on to consider how the duty of care alleged by Mr Murdoch would affect such decisions, holding that  -

'As regards matters prior to, and potentially relevant to, a protected decision, it seems to me that examination by a court of what may or may not have gone wrong is inextricably bound up with an examination of the protected decision. In the present case Mr Murdoch wants to inquire, for example, into the checks that were in place to ensure that letters were correctly addressed. However whether [the] letters were incorrectly addressed is something which was germane to both the April and the July decisions. Further, this aspect of Mr Murdoch's claim inevitably involves identifying what negligence prior to the protected decision can be proven and asking whether but for the proven negligence the protected decision would have been different. Once it is acknowledged that the statutory scheme seeks to protect these decisions from examination in a court (otherwise than by way of statutory appeal, judicial review or action for misfeasance) in my view it must follow that this aspect of Mr Murdoch's claim is incompatible with the statutory scheme.' (paragraph 84)

In relation to the DWP's delay in ensuring that Mr Murdoch received the benefits due to him under the July decision, Mr Justice Walker states -

'Here it seems to me that parliament must be taken to have been aware of the well established right of action in the County Court. The scheme established by parliament thus is one which contemplates a simple and straightforward remedy where a person entitled to benefit does not receive that benefit. It is in my view incompatible with the scheme to complicate matters by adding a right of action for negligence. I accept that a claimant needs to know of the decision before proceedings can be commenced, but in most cases this can be expected to be a matter of record and readily identifiable. I do not accept that there is likely to be great difficulty in calculating the amount in a case such as Mr Murdoch's – for the amount he was receiving in the past will be known. Nor is the County Court an unsuitable forum for resolving any issue as to calculation.' 
(paragraph 86)

As a result, Mr Justice Walker dismisses Mr Murdoch's appeal.

The High Court judgment in Murdoch v Department for Work and Pensions is available from the BAILII website.