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Sanctions and misfeasance

Sanctions and misfeasance

Postby Hairyloon » Mon Aug 03, 2015 3:10 pm

I have read of plenty of ridiculous sanctions that have been applied to claimants (some examples). I assume that many, if not most of these sanctions were not properly applied, and I was moved to wonder earlier if some of the officers making these decisions might be guilty of misfeasance in public office.
Wikipedia wrote:Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.
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Re: Sanctions and misfeasance

Postby dls » Mon Aug 03, 2015 5:57 pm

Well, they might - particularly if they have, but if they have not then . .
What you describe does not necessarily point in any particular direction.
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Re: Sanctions and misfeasance

Postby Slartibartfast » Mon Aug 03, 2015 8:10 pm

Hairyloon wrote:I have read of plenty of ridiculous sanctions that have been applied to claimants (some examples).


I suspect that the benefit agency would not concur with the examples given. They would say they were misrepresentations or falsehoods, and/or that an appeal process is available for anyone who feels unjustly sanctioned. I have no idea where the truth lays.
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Re: Sanctions and misfeasance

Postby Hairyloon » Mon Aug 03, 2015 8:43 pm

Slartibartfast wrote:
Hairyloon wrote:I have read of plenty of ridiculous sanctions that have been applied to claimants (some examples).


I suspect that the benefit agency would not concur with the examples given. They would say they were misrepresentations or falsehoods, and/or that an appeal process is available for anyone who feels unjustly sanctioned. I have no idea where the truth lays.

For the purposes of this discussion, we can take them at face value and the existence of an appeal is not relevant to the question: that is a bit like saying that it doesn't matter that our negligence broke your arm because we can put it in a splint.
Furthermore, if I have understood correctly, the action would be against the individual decision maker in person, not the jobcentre.
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Re: Sanctions and misfeasance

Postby Hairyloon » Mon Aug 03, 2015 10:41 pm

Best CJ wrote:Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer.


Duncan Fairgrieve wrote:Elements of Misfeasance in Public Office

11. The specificity of the tort derives from the fact that to make out misfeasance, it must be shown that the defendant is a public officer, and that the claim relates to the defendant’s exercise of power as a public officer.

12. The crux of the tort, however, is the mental state of the defendant. The position in this regard is not simple, but essentially boils down to two alternative elements. First, the most stringent arm of this tort is known as targeted malice and requires proof that a public officer has acted with the intention of injuring the claimant. The second limb is less strict and in essence is made out when a public officer acts in the knowledge that he thereby exceeds his powers and that this act would probably injure the claimant.

13. It was the second limb of this test that was examined in the Three Rivers litigation. For the purposes of the second limb of the tort, the current position is as follows. First, there must be knowledge as to illegality. The claimant must show either that the officer had actual knowledge that the impugned act was unlawful or that the public officer acted with a state of mind of reckless indifference to the illegality.

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Re: Sanctions and misfeasance

Postby Slartibartfast » Tue Aug 04, 2015 6:18 am

Hairyloon wrote:
Slartibartfast wrote:I suspect that the benefit agency would not concur with the examples given. They would say they were misrepresentations or falsehoods, and/or that an appeal process is available for anyone who feels unjustly sanctioned. I have no idea where the truth lays.

For the purposes of this discussion, we can take them at face value .....


It will be a short discussion then.

If we are to presume that a benefits agency worker has imposed indisputably harsh, irrational and unjustified sanctions upon a claimant then there is clear recourse. The decision would be overturned by supervisors or formal appeal, and the staff member would be subject to internal performance or discipline proceedings.

The claimant would be entitled to report an allegation of criminal misfeance to the Police, who would deal with it as they felt appropriate (almost certainly taking no action). The claimant would be entitled to bring a private prosecution for criminal misfeance, but without the proof referenced in para 11 Fairgrieve below this would be unlikely to go very far. Either the court would refuse to deal with it, or CPS would take it over and discontinue it.
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Re: Sanctions and misfeasance

Postby Hairyloon » Tue Aug 04, 2015 10:24 am

Slartibartfast wrote:If we are to presume that a benefits agency worker has imposed indisputably harsh, irrational and unjustified sanctions upon a claimant then there is clear recourse. The decision would be overturned by supervisors or formal appeal, and the staff member would be subject to internal performance or discipline proceedings.

You've not had much dealings with benefit claims of late?
Oh hang on, you did say "performance proceedings" is that where they get a gold star for being imaginative?

The claimant would be entitled to report an allegation of criminal misfeance to the Police, who would deal with it as they felt appropriate (almost certainly taking no action). The claimant would be entitled to bring a private prosecution for criminal misfeance, but without the proof referenced in para 11 Fairgrieve below this would be unlikely to go very far. Either the court would refuse to deal with it, or CPS would take it over and discontinue it.

As I understand it, misconduct IPO is a crime and misfeasance is a civil tort therefore, unless Misconduct was complained of, and we have thoroughly failed to discuss that before, neither the police nor the CPS would have any business getting involved.
I don't see any difficulty in the proof required for para 11, but now that you come to mention it, didn't you derail the misconduct thread for exactly the same reason?
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Re: Sanctions and misfeasance

Postby Boo » Tue Aug 04, 2015 8:49 pm

Hairyloon wrote:I have read of plenty of ridiculous sanctions that have been applied to claimants (some examples). I assume that many, if not most of these sanctions were not properly applied, and I was moved to wonder earlier if some of the officers making these decisions might be guilty of misfeasance in public office.
Wikipedia wrote:Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.


I read one of the examples; the graduate who didn't turn up for her JCP appointment as it clashed with an interview at a school.
I have to wonder why she didn't provide evidence she went for the interview and get the sanction overturned. The school would have either written or emailed her about the interview times etc.

As for the guy who had the heart attack during his ESA assessment. Until he had had obs taken and a blood test carried out in a hospital - the assessor would not have known the claimant had actually had a heart attack - so no, the assessment hadn't been completed. I don't agree he should have received a sanction though. Hopefully it was overturned.
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Re: Sanctions and misfeasance

Postby Hairyloon » Sun Oct 30, 2016 11:26 am

In the light of the new film out recently, I thought we should re-visit this question.
To hold up a couple of examples as being more reasonable than they first appear is no answer, neither is to say there is a right of appeal.

As far as I can see the necessary elements are present: they are clearly public officers, exercising their powers as such, the exercise exceeds the power and is likely to damage the claimant.
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Re: Sanctions and misfeasance

Postby Boo » Sun Oct 30, 2016 3:04 pm

Hairyloon wrote:In the light of the new film out recently,


What new film?
Was it some blockbuster I missed?
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