Are statutory duties to protect the ‘vulnerable’ a good idea?
Joe Tomlinson, Angela Paul, and Jed Meers
The Work and Pensions Committee is conducting an inquiry on a highly important matter: how vulnerable welfare claimants are safeguarded by the Department of Work and Pensions (DWP), and whether changes ought to be made. In the course of this work, it has raised this important question: should the DWP be placed under a statutory duty for safeguarding vulnerable claimants?
In posing this question, the Committee is contemplating joining in with a trend in contemporary public law: the proliferation of the concept of ‘vulnerability’. Much of the research on this trend has thus far focused on human rights case law that has invoked this concept. However, the trend is more pervasively reflected in legislation concerning public bodies.
Particularly since the turn of the century, we have seen a proliferation of statutory provisions that seek to impose duties upon public officials in respect of ‘vulnerable’ members of the public. By way of illustration of this trend, an analysis of primary and secondary legislation in the UK, examining the use of the term (or an equivalent, such as ‘vulnerable’) in respect of relations between the public sector and individuals, reveals a distinct recent uptick as demonstrated in the figure below.
Graph charting references to 'vulnerability' in primary and secondary legislation in public law contexts.
These duties are cropping up in both primary and secondary legislation, including in that made by the devolved legislatures, and they now apply in a diverse range of policy fields, including policing, mental health, housing, and asylum. They have also introduced a number of definitions of ‘vulnerability’ (though many provisions leave the term undefined). For instance, in the Domestic Violence, Crime and Victims Act 2004 and the Protection of Freedoms Act 2012, a 'vulnerable adult' is defined as a person aged 18 or older whose ability to protect themselves from harm has been significantly impaired due to a mental or physical disability. The Asylum Seekers (Reception Conditions) Regulations 2005 provide that vulnerable persons can be a disabled person, an elderly person, a pregnant woman, a lone parent with a minor, and/or those who have been subjected to serious forms of psychological, physical, or sexual violence.
While these statutory provisions are diverse, what unifies them is that they seek to encourage specific attention to be directed towards a distinct, ‘vulnerable’ subset of the population. In this sense, they seek to encourage adjustment of, or at least reflection upon, the ordinary course of public action with respect to the group(s) defined as ‘vulnerable’. For instance, under the Health and Social Care Act 2008, the Care Quality Commission must have regard to the need to protect and promote the rights of vulnerable adults.
The proliferation and diversity of legislative definitions of vulnerability are, or should be, an object of curiosity for public lawyers. However, there is an even more important socio-legal question this trend gives rise to: do such statutory duties improve the treatment of ‘vulnerable’ people by public bodies, and do they improve the outcomes of public services for this group?
There is remarkably little available evidence in either direction, and it is far from obvious that the lines of causation from (even well-intentioned) statutory duties to better processes and outcomes for relevant groups are straightforward. There are also additional complexities—not least the potential labelling effects of public authorities deeming certain people ‘vulnerable’ (it not being a label that everyone so labelled would necessarily appreciate). Such provisions may even have negative consequences–for instance, they might be used to ‘gatekeep’ access to certain processes or services, as has been argued in relation to homelessness decision-making under Part VII of the Housing Act 1996. We need much more research to deepen empirical understanding of how these proliferating statutory duties are shaping the design, operation, and impact of the myriad of public services in which they are being adopted (and, indeed, if they are having any meaningful effects at all).
This brings us back to the question the Work and Pensions Committee raised: should the DWP take on a statutory duty for safeguarding vulnerable claimants? It is easy to see why this would be attractive. We know the processes and actions of the DWP can have major impacts (positive and negative) on the lives and well-being of those who rely upon social security. We also know tragic stories emerge from social security bureaucracy, where the interests and circumstances of vulnerable people have not been given sufficient attention.
At the same time, it is hard to say, when looking at the current evidence (or the lack thereof), whether a legislative duty would change anything for the better for those who rely upon DWP systems. There could even be a risk that well-intentioned provisions not only clog up the statute book but also have negative effects on social security claimants. In the context of the present paucity of evidence, if the Committee wishes to recommend the introduction of such a duty on the DWP, then it might also be wise to suggest a statutory requirement for meaningful periodic evaluation of its implementation and effects.
