Discretion and Law in the British and Irish Social Welfare Systems

The debate on whether a welfare system imposes either a rule based or discretionarysystem, while appearing a simple academic study at first, is one of enormoussignificance for the many hundreds of thousands of people who rely on social welfarepayments each week to maintain subsistence. Imagine the decision of whether aperson could eat, cloth herself or pay the rent being held by one individual. Imaginefurther, a person who does not reach the required legislative requirements for a givenwelfare payment, suffering insurmountable hardship because of this legislativeprovision. Both these examples are at the extremes of the discretion versus lawdebate; however it serves to remind us that one, without the other, may have potentialdisastrous consequences for an individual. This paper shall outline the arguments forand against both systems, and give examples of how relying on either law ordiscretion independently has resulted in perplexing results.