Social security

Secretary of state making amending regulations resulting in claimant losing entitlement to incapacity benefit - statutory procedure for making proposed regulations not followed - amending regulations ultra vires and unamended regulations continuing in force

Howker v Secretary of State for Work and Pensions and another: CA (Lords Justice Peter Gibson, Mance and Hale): 8 November 2002

The claimant had been assessed as entitled to incapacity benefit under regulations in force since 1995.

In 1996, a new regulation was introduced and his previous entitlement to incapacity benefit reviewed and terminated in February 1997.

A social security appeal tribunal and a social security commissioner respectively dismissed his appeals.

The claimant appealed.

Richard Drabble QC (instructed by the solicitor, Child Poverty Action Group) for the claimant; Philip Sales and Jason Coppel (instructed by the solicitor, Department for Work and Pensions) for the secretary of state; John Howell QC and Gemma White (instructed by the Treasury Solicitor) for the social security advisory committee.

Held, allowing the appeal, that the statutory scheme for making and amending regulations under the Social Security Administration Act 1992 ordinarily provided for referral of proposals to the Social Security Advisory Committee whose advice on the proposed regulations would be received by the secretary of state and laid before Parliament; that the committee could, however, make an agreement not to have a referral provided it was an informed agreement based on information reasonably required and which the secretary of state's officials were obliged to provide; that where, therefore, those officials had supplied incorrect information and thereby procured the committee's agreement to not having proposed regulations referred to it and the secretary of state had proceeded to make a new regulation, the statutory procedure had not been observed and a regulation so made was ultra vires and invalid; and that, consequently, regulation 27 of the Social Security (Incapacity for Work) (General) Amendments Regulations 1996 (SI 1996/484) was ultra vires with the result that the exemption in regulation 27(b) of the Social Security (Incapacity for Work)(General) Regulations 1995 (SI 1995/ 311) continued in force.