Legislation

To note the Social Security Acts of 1980 nearly one year after they became operative may seem at first to belie the title of this Review.But the new legislation does more than amend the substantive law of supplementary benefits '; it introduces a major restructuring of the scheme, undertaken by the Department of Health and Social Security partly in response to consistent criticism of the previous scheme from pressure groups and welfare lawyers.The aim of this note is to evaluate this new scheme; that the evaluation after nearly a year can still only be tentative is in itself a criticism.Criticism of the previous supplementary benefits scheme, established by the Supplementary Benefit Act 1966 (originally the Ministry of Social Security Act 1966) and consolidated in later Acts of which the most important was the Supplementary Benefit Act 1976, emanated from three main sources.Academic lawyers, preoccupied during the 1970s with the notion of discretionary power, concentrated their attention on the amount of discretion vested by the previous legislation in the DHSS and its officials particularly in the area of " exceptional circumstances " and " exceptional needs " payments.2The view of discretionary power ,as a "problem," led predictably to a school of thought ,that the discretions should be " structured " by the fashionable technique of r~le-making.~Welfare lawyers and pressure groups active in advising claimants also argued that discretion led to inconsistent awards being made in apparently similar cases, and to officers and tribunal members alike giving rein to their own personal prejudices in making awards and deciding appeal^.^An added complaint was that awards were only nominally discretionary because, in practice, the Department had fettered the discretion of benefit officers by issuing detailed but unpublished policy directives (familiarly known as the A and AX Codes).The status of these codes was indeterminate; were they binding or merely advisory?Were they strictly to be adhered to or could they be set aside?One main objective of the pressure groups was to secure publication of the codes in the form of rules which would give rise to welfare 1 For the substantive changes see Lustgarten, " Social Security : the New Legisla-2 For some views.see Justice, Discretion and Poverfy (Adler and Bradley eds

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  Open Access•Gavin Drewry•Public Administration•1995

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