Howker v Secretary of State for Work and Pensions

Delegated social security legislation may be invalid for a material failure to follow the statutory procedure governing its enactment, even where both Houses of Parliament approved it. Where legislation requires an expert advisory committee’s informed participation, a minister cannot rely on the committee’s agreement to dispense with consultation when departmental misinformation procured that agreement and correct information would have led to a reference or withdrawal of the proposal.

The significance of the procedural failure must be assessed in each case. Not every inaccurate statement will invalidate the resulting legislation. A Social Security Commissioner may determine such a challenge within the statutory appeal process; the jurisdiction extends to procedural as well as substantive ultra vires.

The appellant received incapacity benefit under an exemption in Regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995. Amending regulations removed that exemption after departmental officials inaccurately presented the proposed change to the Social Security Advisory Committee as neutral. The Committee consequently agreed that a formal reference and report were unnecessary.

A Social Security Appeal Tribunal upheld the subsequent termination of the appellant’s benefit. On 4 May 2001, Social Security Commissioner Patrick Howell QC dismissed his appeal, holding that the Committee’s objective agreement was sufficient in the absence of fraud. The central issue before the Court of Appeal was whether the misinformation and resulting absence of the statutory consultation and report rendered the replacement Regulation 27 invalid.

1. Appeal allowed unanimously. Peter Gibson LJ delivered the leading judgment. Mance LJ agreed with both reasoned judgments, and Hale LJ agreed with Peter Gibson LJ’s reasons.

2. A Social Security Commissioner has jurisdiction to determine whether delegated social security legislation is ultra vires whenever that question is necessary to decide an appeal. The jurisdiction is not confined to patent defects or substantive illegality. It extends to irrationality and to defects in the procedure preceding the enactment of the instrument. Approval under the affirmative resolution procedure does not immunise delegated legislation from judicial scrutiny.

3. Sections 170–174 of the Social Security Administration Act 1992 established a precise statutory process intended to provide both the Secretary of State and Parliament with independent expert advice. The duty to refer proposed regulations, subject to specified exceptions, and the duty to supply information reasonably required by the Social Security Advisory Committee meant that any agreement dispensing with a reference had to be informed. The Committee’s established arrangements with the Department amounted to a requirement for information under section 170(4).

4. Departmental officials materially misrepresented the effect of the amendment as neutral when it removed an existing basis of entitlement. The misinformation procured the Committee’s agreement to dispense with a reference. The Commissioner had found that correct information would have caused the Committee to require a reference or the Department to withdraw the proposal. The Secretary of State was responsible for that material procedural failure, irrespective of whether officials acted deliberately.

5. The failure was sufficiently significant to render the amendment ultra vires. Peter Gibson LJ emphasised that not every provision of inaccurate information will necessarily invalidate ensuing regulations; the significance and consequences of the failure must be assessed in each case. Hale LJ added that enforcing Parliament’s prescribed scrutiny process reinforced, rather than undermined, parliamentary democracy.

6. The replacement Regulation 27 was invalid so far as it purported to remove Regulation 27(b) of the Social Security (Incapacity for Work) (General) Regulations 1995. The earlier provision, with the offending words identified in R v Secretary of State for Social Security, ex p Moule deleted, continued to apply. The Commissioner’s, tribunal’s and adjudication officer’s decisions were set aside.

1. Court of Appeal: The appeal was allowed unanimously. The Commissioner’s decision and the decisions of the Social Security Appeal Tribunal and adjudication officer were set aside. The relevant amendment removing Regulation 27(b) was declared ultra vires.
2. Social Security Commissioner: On 4 May 2001, Patrick Howell QC dismissed the appeal. He held that the Committee’s objective agreement to dispense with a reference was sufficient in the absence of fraud.
3. Social Security Appeal Tribunal: On 6 June 1997, the Sutton tribunal confirmed the review and termination of incapacity benefit from 5 February 1997.
4. Adjudication officer: The appellant’s benefit was terminated after he failed the all work test and did not qualify under the replacement Regulation 27.