Instructions to customers

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    Hooper v S of State for Work and Pensions

    is an interesting case that considers this aspect albeit in incapacity benefit. Relying on the Hinchy case is fair enough but the instructions to customers must be direct or even blunt it seems to me!

    This at paras 56 and 57 caught my eye:

    “I do not consider that the words “you should tell the office… before you start work” and “you should fill in an application form before you do any permitted work” are the language of clear and unambiguous mandatory requirement. The consequences for a claimant of not complying with a requirement in accordance with regulation 32(1) can be very serious. That is why in my view, if the Secretary of State wishes to impose a requirement on claimants within the meaning of regulation 32(1), it is incumbent on him to make it absolutely clear that this is what he is doing. There should be no room for doubt in the mind of a sensible layperson as to whether the SSWP is imposing a mandatory requirement or not.

    Mr Commissioner Jacobs said that the word “should” in the factsheet was a “polite way of wording an instruction”. There may be contexts where the dictates of politeness are such that “should” means “must”. Even in a social context, “should” may not mean “must”. As Thomas LJ pointed out in argument, “you should go to the doctor” does not mean the same as “you must go to the doctor”. The former is more the language of “you would be well advised to go to the doctor”. The latter is an instruction. But there is no reason why the Secretary of State should have felt inhibited from using the clear and unambiguous word “must” in the present context. The context is not one which demanded politeness at the expense of clarity”.

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