Discretion and Law in the British and Irish Social Welfare Systems

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