Regina v Secretary of State for Social Security ex parte Sherwin (a Patient By Her Next Friend Sherwin): Admn 16 Feb 1996

An official in the Benefits Agency, part of the Department of Health and Social Security, suspended an income support/severe disability premium payable to the appellant. The court was asked whether the decision of the Agency, made under the authority of its chief executive, was to be regarded, as a matter of law, as the decision of the Secretary of State. The court examined the Framework document setting out the position of the Agency in relation to the DHSS which ‘acts on behalf of and in accordance with any directions, where appropriate, of the Secretary of State’. Ministers – the Framework provided – remain accountable to Parliament for the full range of their responsibilities.
After a close examination of the inter-relationship between the Agency and the Department, Lord Justice Kennedy concluded: ‘In my judgment, in the context of this case, the creation of the Benefits Agency has had no effect whatsoever on the operation of the Carltona principle. In addition to the cases to which I have referred, Mr Drabble referred us to a number of academic writings which I have read with interest. At the end of the day I came back to what was said by Lord Griffiths in Oladehinde. The decision was taken by a person of suitable seniority in the Agency (which was itself within the DSS) and it was taken by a person for whom the Secretary of State accepts responsibility. Therefore the Carltona principle applies.’
Latham J added: ‘There may be circumstances in which an agency is established in such a way that a minister could no longer, on any sensible analysis, be accountable to Parliament for its actions. The report of the Efficiency Unit was alive to that particular problem. In my judgment however the Benefits Agency has been established in a way which does not create any such difficulty. The use of the word ‘delegate’ was perhaps unfortunate but it has to be read in context. The intention was to ensure that the administration of benefits was located within a structure which, so far as possible, was a recognisable entity with lines of managerial responsibility intended to make it effective. That did not affect the constitutional position when, in accordance with the guidance which I have set out above, Mr Ash exercised the Secretary of State’s power under Regulation 37. That power was exercised by Mr Ash as a civil servant within the Department of Social Security on the authority of the Secretary of State in circumstances where the Secretary of State was answerable to Parliament.’
Lord Justice Kennedy and Mr Justice Latham
CO/1724/95, (1996) 32 BMLR 1
England and Wales
Cited by:
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CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

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Updated: 01 February 2021; Ref: scu.140391