zinao wrote:In my case i did not tick one mandatory box that dealt with benefits but in the caseworker instructions it states that discretion could be exercised if the info is in another part of the application, in my case, my NI nos. the claimant in that case also did not raise any issue about section 3 and he was offered discretion to submit new photos whereas in my application i was not offered nothing even though i asked for during my resubmitted application.
36
zinao wrote:Secondly when i submitted my second application i used the same photos which at that time was more than a month old. in practical terms that application should have been invalid again, since the homeoffice did not accept the invalid appliction arguement. i just find it crazy that the sec of state will use discretion in one part of application but not in another. if ou dont call that disportionate i dont know what else is.
39 wrote:Finally, submissions were made that the Secretary of State did not notify the Claimant that she had a discretion which she could exercise. It was submitted that the Claimant should have been notified so that she in fact had the opportunity to make submissions as to why discretion should have been exercised in her favour. In my judgment there can be no possible mileage in that submission. If that submission were right it would follow that in every application that is made the Secretary of State would have to notify applicants whose applications would otherwise fail that she had a discretion and invite submissions. That would undermine the whole system, designed as it is with a simple form with clear questions and mandatory requirements to be dealt with by way of tick boxes. This would lead to arguments in every case as to what would be suitable for discretion and impose burdens on the Secretary of State which, in my judgment, would be wholly unacceptable and cannot properly be said to be part of her obligations. I further accept the submissions of Mr Evans that if the issue of discretion arose at all, it would have arisen at the time of the submission of the second application. He suggested, for example, that if the second application had been submitted indicating that the reason the first application was wrong was, say, that the UK Border Agency website was not working and it was not possible to establish the requirements at the time of the first application, then that information would provide information on which the issue of discretion might have to have been visited. It is not, in my judgment, nor could it ever properly be said to be part of the Secretary of State's function to notify the Claimant that she has a discretion and to invite the submission on matters going to that discretion. If there are matters in front of the Secretary of State which require her to consider whether to exercise her discretion, she plainly must take those matters into account, but she does not, in my judgment, have to write and ask for them.
Unfortunately, this seems to disregard the perhaps fairer
17(1)(b) provision that was previously in force until 2008. Its absence undermines the statutory protection normally provided by
Section 3C. Sadly, expediency at the expense of
justice is apparently becoming
more and
more acceptable?
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