HOWKER and Secretary of State for Work and Pensions and Social Security ADVISORY Committee
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale |
| Judgment Date | 08 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1623 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: SSRTF/2001/2203/A1 |
| Date | 08 November 2002 |
[2002] EWCA Civ 1623
Lord Justice Peter Gibson
Lord Justice Mance and
Lady Justice Hale
Case No: SSRTF/2001/2203/A1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
A Social Security Commissioner
(Mr. Patrick Howell Q.C.)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Richard Drabble Q.C. (instructed by Child Poverty Action Group) for the Appellant
Mr. Philip Sales and Mr. Jason Coppel (instructed by the Office of the Solicitor to the Department for Work and Pensions) for the First Respondent
Mr. John Howell Q.C. and Miss Gemma White (instructed by the Treasury Solicitor) for the Second Respondent
Peter Gibson L.J.:
Eric Howker appeals from the decision given on 4 May 2001 by a Social Security Commissioner, Mr. Patrick Howell Q.C. Thereby the Commissioner dismissed Mr. Howker's appeal from the decision on 6 June 1997 of a Social Security Appeal Tribunal sitting in Sutton, confirming that Mr. Howker's previous entitlement to incapacity benefit had been correctly reviewed and terminated from 5 February 1997. The Tribunal rejected Mr. Howker's argument that he should continue to be entitled to benefit by reason of a provision in Reg. 27 (b) of the Social Security (Incapacity for Work) (General) Regulations 1995 ("the 1995 Regulations"). That provision was repealed and not re-enacted by the Social Security (Incapacity for Work and General Amendments) Regulations 1996 ("the 1996 Regulations"), but Mr. Howker challenged the validity of the new Reg. 27. This appeal is brought with the permission of the Commissioner, who made trenchant criticisms of the conduct of officials in the Department of Social Security ("the Department") in the course of the making of the 1996 Regulations. The issue raised on this appeal is whether by reason of that conduct the new Reg. 27 was not validly made by the Secretary of State with the result that the exemption in Reg. 27 (b) of the 1995 Regulations continues in force.
I must now set out the background facts which I take largely from the unchallenged findings made by the Commissioner in his full and lucid decision.
Mr. Howker, who is in his late 50s, has for some years been suffering from heart trouble and other health problems. He received invalidity benefit from 1994. That benefit was replaced by incapacity benefit on 13 April 1995. The principal test for that benefit is what is known as the "all work test", a points-based test designed to determine whether someone is incapable of taking paid employment of some kind. Mr. Howker was found not to satisfy that test. However, the 1995 Regulations contained in Reg. 27 a provision for entitlement to benefit in certain exceptional cases where the all work test was not satisfied. By Reg. 27:
"A person who does not satisfy the all work test shall be treated as incapable of work if in the opinion of a doctor appointed by the Secretary of State —
….
(b) he suffers from some specific disease or bodily or mental disablement and, by reasons [sic] of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he was found capable of work …."
Para. (b) applied to Mr. Howker, as was accepted by the Department. However, in an unreported judgment of Collins J. on 12 September 1996 in R v Secretary of State for Social Security ex p. Moule Reg. 27 was held to be invalid as outside the enabling legislation, in that it provided for the question of deemed incapacity to be determined by a doctor approved by the Secretary of State rather than by an adjudication officer as required by the legislation.
Consequent on that decision the Department proposed alterations to Reg. 27. The proposals were to make the question whether the conditions for exemption were satisfied one for the determination of the adjudication officer and to recast those conditions by, amongst other things, deleting para. (b) without replacement. None of the remaining exempting conditions applies to Mr. Howker, as he accepts.
The power to make regulations in this field is vested in the Secretary of State. By s. 171D Social Security Contributions and Benefits Act 1992 as amended:
"…. Regulations may provide that a person shall be treated as capable of work, or as incapable of work, in such cases or circumstances as may be prescribed."
Under s. 6 Social Security (Incapacity for Work) Act 1994 the statutory instrument by which the Secretary of State exercises the power to make regulations "shall not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House"; in other words the making of the regulations is subject to the affirmative resolution procedure.
Ss. 170–174 Social Security Administration Act 1992 ("the 1992 Act") contained further provisions governing the procedure for making and amending regulations. By s. 9 Social Security Act 1980 the Social Security Advisory Committee ("the Committee") was constituted. This is an independent advisory committee, described by the Commissioner (in para. 13 of his decision) as "a body of people of great distinction and experience in public life generally, and in particular on social issues".
S. 170 (1) of the 1992 Act provided for the continuation in being of the Committee:
"(a) to give (whether in pursuance of a reference under this Act or otherwise) advice and assistance to the Secretary of State in connection with the discharge of his functions under the relevant enactments …."
The relevant enactments include the Social Security Contributions and Benefits Act 1992 and the 1992 Act. By s. 170 (4):
"The Secretary of State shall furnish the Committee with such information as the Committee may reasonably require for the proper discharge of its functions."
S. 172 (1) of the 1992 Act provides, so far as material:
"Subject —
….
(b) to section 173 below,
where the Secretary of State proposes to make regulations under any of the relevant enactments, he shall refer the proposals, in the form of draft regulations or otherwise, to the Committee."
By s. 173 of the 1992 Act, so far as material:
"(1) Nothing in any enactment shall require any proposals in respect of regulations to be referred to the Committee …. if —
(a) it appears to the Secretary of State that by reason of the urgency of the matter it is inexpedient so to refer them; or
(b) the [Committee has] agreed that they shall not be referred.
(2) Where by virtue only of subsection (1)(a) above the Secretary of State makes regulations without proposals in respect of them having been referred, then, unless the [Committee] agrees that this subsection shall not apply, he shall refer the regulations to [it] as soon as practicable after making them.
(3) When the Secretary of State has referred proposals to the Committee …., he may make the proposed regulations before the Committee have made their report …. only if after the reference it appears to him that by reason of the urgency of the matter it is expedient to do so.
(4) Where by virtue of this section regulations are made before a report of the Committee has been made the Committee shall consider them and make a report to the Secretary of State continuing such recommendations with regard to the regulations as the Committee thinks appropriate; and a copy of any report made to the Secretary of State on the regulations shall be laid by him before each House of Parliament together, if the report contains recommendations, with a statement —
(a) of the extent (if any) to which the Secretary of State proposes to give effect to the recommendations; and
(b) in so far as he does not propose to give effect to them, of his reasons why not."
S. 174 provides, so far as material:
"(1) The Committee shall consider any proposals referred to it by the Secretary of State under section 172 above and shall make to the Secretary of State a report containing such recommendations with regard to the subject-matter of the proposals as the Committee thinks appropriate.
(2) If after receiving a report of the Committee the Secretary of State lays before Parliament any regulations or draft regulations which comprise the whole or any part of the subject-matter of the proposals referred to the Committee, he shall lay with the regulations or draft regulations a copy of the Committee's report and a statement showing —
(a) the extent (if any) to which he has, in framing the regulations, given effect to the Committee's recommendations; and
(b) in so far as effect has not been given to them, his reasons why not."
The Committee's staff consists only of a small permanent secretariat. The Committee members in practice are accustomed, and expect, to rely on the information and assistance provided by officials of the Department in relation to the detail and intended effects of any proposal the Department puts before them.
The procedure adopted by the Committee and the Department is that the Department refers proposed amendments to regulations to the Committee on an informal basis so that the Committee has the opportunity to decide whether it wishes the proposed amendments to be referred formally to it under s. 172 or whether it agrees under s. 173 that they should not be referred. The practice of the Department, when presenting packages of regulations to the Committee, is to describe each item proposed and, at the Committee's request, to add an indicator to show whether the item is technical, neutral, adverse or beneficial. Of those indicators, "neutral" means:
"The...
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