Boldly Going Where No Law Has Gone before: Call Centres, Intake Scripts, Database Fields, and Discretionary Justice in Social Assistance

This article focuses on the response of public law to bureaucratic disentitlement. Whether eligibility decisions for social welfare benefits are made on the basis of a face to face interview or telephone intake screening at a call centre, whether the questions are onerous for vulnerable applicants to answer, whether the bureaucratic hurdles can reasonably be surmounted or lead to the de facto exclusion of otherwise eligible applicants, all constitute questions which should be fundamentally intertwined with the question of whether a discretionary decision is legally valid. This is so not only because service delivery models and administrative design may determine the fairness, reasonableness, and accuracy of a decision, but also because forms of administration ought not to be inconsistent with our fundamental values, such as human dignity. This article advocates a more robust, public law response to the welfare system than courts have been willing to undertake, This approach requires that judges look beyond the veil of public administration and ensure that the rule of law reaches all spheres of public authority. Changing the welfare system, however, ultimately requires changing political and bureaucratic, as well as legal, culture.