Tuesday Law Report: Incapacity Benefit Regulation Invalid Because Correct Procedure Not Followed ; 12 November 2002 Howker V Secretary of State for Work and Pensions and Another ( EWCA Civ 1623) Court of Appeal, Civil Division (Lord Justice Peter Gibson, Lord Justice Mance and Lady Justice Hale) 8 November 2002
Kate O'Hanlon, Barrister, The Independent (London, England)
REGULATION 27 of the Social Security (Incapacity for Work and General Amendments) Regulations 1996 had been made without a formal reference to the Social Security Advisory Committee, the committee having decided on the basis of incorrect information given by the Department of Social Security that no reference was necessary, and the regulation was therefore invalid.
The Court of Appeal allowed the appeal of Eric Howker against the decision of a social security commissioner that he was no longer entitled to incapacity benefit.
The claimant had been in receipt of incapacity benefit. He was entitled to it by virtue of the exception to the "all work test" in regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995, namely that he should be treated as incapable for work if, in the opinion of a doctor appointed by the Secretary of State, he suffered from some specific disease or disablement which would cause a risk to his health if he was found capable of work.
In R v Secretary of State for Social Security, ex p Moule (12 September 1996, unreported) it was held that regulation 27 was invalid. The Department of Social Security accordingly proposed alterations to regulation 27.
By virtue of section 172 of the Social Security Administration Act 1992 the Secretary of State was required to refer proposals for certain regulations to the Social Security Advisory Committee.
The committee and the department had adopted a procedure whereby proposed amendments were referred to the committee on an informal basis so that the the committee could decide whether it wished them to be referred formally under section 172 or whether it agreed under section 173 that they should not be referred.
At a meeting of the committee an official of the department explained that those who had fallen into the category covered by regulation 27(b) of the 1995 Regulations would be covered by other provisions. …