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Neutral Citation Number:
Reported Number:	R(IB)3/03
File Number:	CIB 4563 1998
Appellant:	Howker v. Secretary of State for Work and Pensions [2002] EWCA Civ 1623
Respondent:
Judge/Commissioner:	N/A
Date Of Decision:	08/11/2002
Date Added:	03/04/2002
Main Category:	Incapacity benefits
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Incapacity benefit - exceptional circumstances - misleading reference of amending regulation to Social Security Advisory Committee - invalidity of amendment The claimant did not satisfy the "all work" test, but was entitled to incapacity benefit as suffering "from some specific disease ... and by reason of such disease ... there would be a substantial risk to [his] mental or physical health...if he was found capable of work" within the exception provided by regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995 (the "1995 Regulations"). In 1996 the conditions in regulation 27 were recast and paragraph (b) was repealed and not re-enacted by the Social Security (Incapacity for Work and Miscellaneous) Regulations 1996 (the "1996 Regulations"). The claimant did not fall within the exceptions as amended and his entitlement to incapacity benefit was terminated. Section 172 of the Social Security Administration Act 1992 required the Secretary of State for Work and Pensions to refer proposals for certain regulations to the Social Security Advisory Committee unless ... (section 173(1)(b)) "the [Committee] have agreed that they shall not be referred". Proposed amendments to regulations were referred informally to the Committee for them to decide whether they required a formal reference under section 172 or whether they agreed, under section 173, that the proposals should not be referred. The Committee members were accustomed and expected to rely on the information and assistance of officials of the Department for Work and Pensions as to the detail and intended effects of any proposal put to them. The practice was for each proposed amendment to be described by the departmental officials as "technical", "neutral", "adverse" or "beneficial". In 1996 when the proposal amendment of regulation 27 of the 1995 Regulations was submitted it was described as "neutral". At a subsequent meeting of the Committee to consider the proposals an official explained, in answer to questions about whether all the amendments were in fact "neutral", that all claimants who fell within regulation 27(b) of the 1995 Regulations would be covered by other provisions within the "all work test". Those statements were untrue. In reliance on them, the Committee did not require a formal reference of the proposed recasting of regulation 27 and the 1996 Regulations were made. The claimant challenged the validity of the regulation 27 as amended by the 1996 Regulations contending that he should continue to be given the benefit of regulation 27(b) of the 1995 Regulations as originally enacted. An appeal tribunal rejected his appeal against the termination of his benefit. He appealed to the Commissioner who criticised the conduct of the departmental officials responsible for the misstatements but, in view of the concession that the agreement of the Committee was not procured by deception, concluded that the objective fact of that agreement was sufficient to comply with section 173(1)(b). The 1996 amendment of regulation 27 was therefore not invalid. On further appeal by the claimant to the Court of Appeal, Held, allowing the appeal, that: 1. the Commissioner had jurisdiction to determine the question of whether the amended regulation 27 was validly made in accordance with the procedure required by the enabling Act, and it was not necessary to leave that to judicial review proceedings; Chief Adjudication Officer v Foster [1993] AC 754, R(IS) 22/93 applied; 2. where the Secretary of State through his officials has misled the Committee and thereby procured the Committee's agreement to no formal reference, and where the provision of correct information would have led to a reference (as the Commissioner found) the statutory procedure for the making of regulations had not been observed; 3. the 1996 amendment of regulation 27 was accordingly invalid and regulation 27(b) of the 1995 Regulations as modified by the judgement in R v Secretary of Sate for Social Security, ex p. Moule (12 September 1996, unreported) continued in operation.
Decision(s) to Download:	R(IB) 3-03final.doc