Summary
In this court of appeal decision it was found that amendments to regulation 27 of Social Security (Incapacity for Work) (General) Regulations 1995, as made by SI 1996/3207, were"ultra vires" (beyond ones powers of authority and therefore unlawful). As a result part of the regulation has now reverted to the old unamended regulation 27. This took effect from 8th November 2002.
Exceptional circumstances
Regulation 27 acts as a safeguard for people with certain conditions who cannot score enough points to pass the incapacity benefit personal capability assessment test. It is used to see if there are exceptional circumstances which allow someone to be treated as incapable of work when they fail all other aspects of the test.
Background
Mr Howker had been suffering from heart trouble with high blood pressure and general circulation problems. He was accepted as having become incapable of work under the old regulation 27(b) of Social Security (Incapacity for Work) (General) Regulations 1995:
"he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work."
Regulation 27 was amended, removing 27(b), with the result that Mr Howker was taken off incapacity benefit when his award was reviewed. He appealed and was unsuccessful. He subsequently appealed to the commissioners (CIB/4563/1998 now reported as R(IB)3/03).
Commissioner's decision
The appeal did not succeed but Commissioner Howell noted that there had been "a piece of extremely sharp practice" when the DSS, now Department for Work and Pensions, submitted regulation 27 amendments to the Social Security Advisory Committee (SSAC) for consideration. The DSS, deliberately underemphasised the effects of the proposed change in legislation, by stating that these changes were "neutral in effect", so the SSAC was persuaded not to advise on them.
Court of appeal
Mr Howker's case went to the court of appeal which stated:
"Where, as in the present case, the Secretary of State through his officials has misled the Committee by information which is obviously incorrect if comparison is made between the old Reg. 27 and the new Reg. 27, and thereby procured the Committee's agreement to no reference, and where, as the Commissioner has found, the provision of the correct information would have led to a reference (or the withdrawal of the new Reg. 27), and the Secretary of State proceeds to make the new Reg. 27, it is manifest, to my mind, that the procedure intended by Parliament for the making of regulations has not been observed. "
It was found that regulation 27 was "ultra vires" (beyond ones powers of authority and therefore unlawful). Regulation 27(b) has now been restored, though other parts of the amended regulation have been allowed to stand. The change takes effect from 8th November 2002.
Social Security Advisory Committee (SSAC)
Following this decision the SSAC was asked by the Secretary of State for Work and Pensions to consider proposals for regulations, to amend regulation 27 back to the 1997 amendment. The full report with its recommendations was published in March 2005. These recommendations were summarised in an accompanying statement by the Parliamentary Under Secretary of State for Work and Pensions.
"In May 2003 the Committee recommended that no change be made for the present but that the Government should monitor the situation. It considered that it had seen no evidence of any inappropriate broadening of the criteria leading to benefits being paid in “undeserving” cases. It sees the current regulation 27(b) in its reinstated form as crucial to ensuring that income to a number of vulnerable and disadvantaged customers is not disrupted and their lives destabilised. The Committee also considers that the current provisions provide a necessary safety net for people who do not get a correct personal capability assessment."
Although the government has decided that there will be no amending regulation for the time being the door is left open for future amendments to regulation 27.
"The Government has decided to withdraw the proposal at the present time. The Government intends to gather more information about the operation of the “substantial risk” provision in practice before deciding whether or not further proposals are warranted."
Effect of Howker on other decisions
There were other amendments made at the same time as those made to regulation 27. Following the Howker decision commissioner's decision R(IB)3/04 questioned the lawfulness of those amendments that were not "neutral" in effect. As a result several amended activities/descriptors have been declared unlawful in subsequent commissioner's decisions.
Key decisions which have caused a reversion in the rules are CIB/1239/2004 and CIB/3397/2004 which have amended the sitting test .
Regulation 27 as it applies in the United Kingdom
England, Scotland and Wales - decisions from 8th November 2002
From 8th November 2002 regulation 27 should now read:
27 - (1) A person who does not satisfy the all work test shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.
(2) The circumstances are that -
(a) he is suffering from a severe life-threatening disease in relation to which-
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure, and
(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;
(b) he suffers from a previously undiagnosed potentially life-threatening condition which has been discovered during the course of a medical examination carried out for the purposes of the all work test by a doctor approved by the Secretary of State;
(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the all work test [personal capability assessment].
As a result of the Howker decision, to this should be added:
" he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work."
England, Scotland and Wales - decisions prior to 8th November 2002
Prior to 8th November 2002 the old regulation applies. This reads as follows:
27 - (1) A person who does not satisfy the all work test shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.
(2) The circumstances are that -
(a) he is suffering from a severe life-threatening disease in relation to which-
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure, and
(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;
(b) he suffers from a previously undiagnosed potentially life-threatening condition which has been discovered during the course of a medical examination carried out for the purposes of the all work test by a doctor approved by the Secretary of State;
(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the all work test.
Northern Ireland - decisions from 10th February 2005
From 10th February 2005 regulation 27 reads:
27. A person who is not incapable of work in accordance with the personal capability assessment shall be treated as incapable of work if -
(a) he suffers from a previously undiagnosed potentially life-threatening condition;
(b) he suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work;
(c) he suffers from a severe uncontrolled or uncontrollable disease; or
(d) he will, within three months of the date on which the doctor examines him, have a major surgical operation or other major therapeutic procedure.
Northern Ireland - decisions prior to 10th February 2005
Prior to 10th February 2005 the old regulation applies. This reads as follows:
27 - (1) A person who does not satisfy the all work test shall be treated as incapable of work if any of the circumstances set out in paragraph (2) apply to him.
(2) The circumstances are that -
(a) he is suffering from a severe life-threatening disease in relation to which-
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure, and
(ii) in the case of a disease which is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;
(b) he suffers from a previously undiagnosed potentially life-threatening condition which has been discovered during the course of a medical examination carried out for the purposes of the all work test by a doctor approved by the Secretary of State;
(c) there exists medical evidence that he requires a major surgical operation or other major therapeutic procedure and it is likely that that operation or procedure will be carried out within three months of the date of a medical examination carried out for the purposes of the all work test.
Note: C13/03-04(IB)(T), a decision by a tribunal of commissioners, held that a tribunal was wrong to apply changes made in Great Britain (England, Scotland and Wales) to Northern Ireland (NI) which has its own jurisdiction.
Regulation 27 was subsequently amended by The Social Security (Incapacity for Work) (General) (Amendment) Regulations (Northern Ireland) 2005 - SR 2005/15. The amendment is that of the original unamended decision, unlike the current regulation that applies in Great Britain.
More information
You can read the full decision, a summary of the main points and the various regulation 27s in operation in the United Kingdom (UK) by clicking on the links below.
- howker decision in full
- si 1996/3207
- sr 2005/15
- social security advisory committee report (march 2005)
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