Forms of fettering: application forms and the exercise of discretion in the welfare state

Abstract

Application forms are often the compulsory interface between citizens and their social rights.Applicants for support must navigate the questions, checklists and blank spaces in often long, detailed documents to assert their social entitlements. Given their ubiquity and the central role they play in the administration of the welfare state, it is perhaps surprising that they have been neglected in favour of a focus on other documentation, principally policy and guidance. This paper argues that the non-fettering ground of reviewa principle whose jurisprudence is tied to the design and use of policyalso engages application forms. Through an analysis of 271 application forms used to administer the localised Discretionary Housing Payment scheme in England, three examples of their fettering potential are provided: the imposition of exhaustive criteria; requiring the applicant to self-classify or disclose irrelevant considerations; and constraining responses through tied evidential requirements. By arguing that the non-fettering ground should not limit itself to one kind of document (policy) when administrators are so reliant on another (application forms), the paper's broader agenda is to argue that principles of good administration should apply to all documentation used to administer social entitlement.

What is in a form? Examining the complexity of application forms and administrative burden

“…The analysis of forms that govern access to social services is a small but growing area of research that this paper contributes to (for examples, see Cook, 2021a;Meers, 2020). In this study, we examine what the primary point of contact with the NDIS might look like for an applicant.…”

“…The increasing recognition of the significance of forms in accessing government support has resulted in a growing body of scholarship undertaking form-led analysis (for examples, see Cook, 2021a;Meers, 2020). Existing form-led analysis has highlighted the critical role that forms play in filtering information in the welfare state, and how this can shape the choices that individuals make in the services that they apply for.…”

“…Existing form-led analysis has highlighted the critical role that forms play in filtering information in the welfare state, and how this can shape the choices that individuals make in the services that they apply for. To date, form-led analysis has tended to focus on the overall difficulty of applications, or the ways in which specific questions can constrain access to support (Meers, 2020). This paper develops a typology to interpret the complexity present in different questions on a form.…”

“…Meers (2020) highlights this issue through the example of the restriction imposed on forms to access long-term social housing in the United Kingdom. Meers (2020) showed that a restricted set of possible options on a form resulted in people having less time in housing support than they were legally entitled to. In such cases, forms can represent a type of 'policymaking by other means' (Herd & Moynihan, 2019), where access to services or support is fettered despite the citizen having a legal entitlement to the service.…”

“…Yet, because they are often thought of as an innocuous piece of the social security system, they receive very little analytical attention. However, in a variety of different ways forms play a critical role in shaping the wider accessibility to services and other government entitlements (Meers, 2020). At the most basic level, correct completion of a form is necessary for access.…”