Decision No:  C13/03-04(IB)(T)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

INCAPACITY BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 8 July 2003

DECISION OF THE TRIBUNAL OF COMMISSIONERS

1.	This is an appeal by the claimant, with the leave of a legally qualified panel member, from a decision of the appeal tribunal sitting at Newtownards on 8 July 2003 (“the appeal tribunal”).  For the reasons which we give as to the applicability of the decision of the Court of Appeal in England and Wales referred to below as the “Howker case”, that decision is erroneous in point of law.  Accordingly, we set aside the decision below. However, the claimant would have failed before the appeal tribunal even if the appeal tribunal had applied the law correctly. We therefore give a final decision which is to the same effect as that of the appeal tribunal.

2.	On 25 May 2004, the Chief Commissioner, in exercise of the powers conferred upon him by Article 16(7) of the Social Security (Northern Ireland) Order 1998, directed that this appeal be dealt with by a Tribunal of Commissioners.  Subsequently, he directed that the matter be dealt with by way of an oral hearing.  

3.	That oral hearing took place before us in Belfast on 15 February 2005.  The claimant was not present but he was represented by Mr Odhran Stockman of Counsel, instructed by Messrs Elliott, Duffy, Garrett, Solicitors, on behalf of Citizens Advice.  The Department was represented by Mr Paul Maguire of Counsel, instructed by the Departmental Solicitor.  We are grateful to Mr Stockman and Mr Maguire for the care and clarity with which they presented their respective cases and also for their helpful skeleton arguments and for the additional written submissions which they lodged after the hearing.

4.	We should, perhaps, say that during the course of the appeal a number of written submissions were made on behalf of the parties.  Although these have been of use we do not think it is necessary to refer to them in view of the oral submissions which Mr Stockman and Mr Maguire made to us at the hearing, in the final version of their skeleton arguments and in their subsequent written submissions.  

	The Issues

5.	The legally qualified panel member who gave leave to appeal said that he did so because the appeal involved the question whether the decision of the Court of Appeal in England and Wales in Howker – v – Secretary of State for Work and Pensions and the Social Security Advisory Committee [2002] EWCA Civ 1623 “was applicable to the appeal and if applicable, whether it was correctly applied”.  We shall refer to that decision as the “Howker case”.  The appeal was argued on the basis that the principal issue before us was what, if any, is the effect of the Howker case on social security law within Northern Ireland. It is common ground that, as a decision of the Court of Appeal in England and Wales, it is of persuasive authority only in Northern Ireland.  It is also common ground that, as will be seen, the basis on which the Court of Appeal reached its decision cannot apply directly in the present appeal.  The decision can only apply indirectly if it is to apply at all.   We shall deal with the principal issue first and shall then turn our attention to the remaining issues in the appeal.  

6.	In the Howker case the written order drawn up following the judgments of the Court of Appeal contained the following declaration:

“(5)	It is declared that regulation 2(9) of the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 is ultra vires and of no effect insofar as it purported to delete sub-paragraph (b) of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995”.  

	To understand that declaration it is necessary to say something about the chequered and somewhat fraught history of regulation 27 of the Social Security (Incapacity for Work) (General) Regulations 1995 and the manner in which those regulations may be amended in Great Britain.  It is then necessary to refer to the equivalent regulation in the Northern Ireland Regulations (regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995).   We begin, however, with the facts of the present appeal and will then say something about the separate systems of social security law in Great Britain and Northern Ireland.

	The Facts

7.	The facts can be shortly stated. The claimant was born on 2 March 1947. He was, accordingly, 55 at date of the decision under appeal (25 July 2002). He worked as a civil servant. From about 1998, he began to develop heart problems, in particular atrial fibrillation. In May 1999, he suffered two strokes. In May 2001, he had a pacemaker fitted. The original device proved unsuitable and in January 2002, a different, and this time more satisfactory, device was fitted. In the meantime the claimant had been absent from work for much of the time. On 31 January 2002, he was retired from the Civil Service on the grounds that he was medically unfit for work.

8.	So far as benefits are concerned, the claimant became unfit for work on 27 May 1998, and was paid statutory sick pay by his employers up to 11 December 1998. From and including 12 December 1998, he received incapacity benefit. He did so by virtue of a decision of the adjudication officer dated 24 November 1998. By then the test of his capacity for work was the personal capability assessment. The present appeal arises out of an assessment which the claimant underwent in early 2002. The claimant was asked to complete a questionnaire and did so on 27 March 2002. He was medically examined on 21 May 2002. On 25 July 2002, a decision maker considered the evidence. He concluded that the claimant was not entitled to any points in respect of the physical descriptors and only three points in respect of the mental health descriptors, namely, one point because his mental condition prevented him from undertaking leisure activities previously enjoyed, one point because he frequently found there were so many things to do that he gave up because of fatigue, apathy or disinterest and one point because he got irritated by things which would not have bothered him before he became ill.

9.	Such a score is not enough to satisfy the personal capability assessment. Consequently the decision maker decided that the claimant was capable of work because there were no exceptional circumstances. He further decided as follows:

“I have superseded the decision of the Adjudication Officer dated 24th November 1998 awarding Incapacity Benefit from and including 12th December 1998.

This is because the Department has made a determination that [the claimant] is no longer incapable of work from medical evidence received following an examination in accordance with regulation 8 of the Incapacity for Work Regulations.

My decision only for the period from and including 25th July 2002 is that [the claimant] is capable of work and is not entitled to Incapacity Benefit from and including 25th July 2002.”

	The claimant appealed against that decision.

10.	His appeal first came before a tribunal which sat on 29 November 2002. On that occasion the hearing was adjourned because the claimant’s representative was unable to be present. The next hearing was on 27 March 2003. Again, the matter was adjourned, this time for two reasons. First, the claimant’s representative raised the Howker case and its applicability within the jurisdiction. The presenting officer was taken by surprise and wished to consult and obtain legal advice. Secondly, to give the claimant the opportunity to obtain further evidence. The substantive hearing finally took place on 8 July 2003, before a tribunal consisting of a legally qualified chairman sitting with a medically qualified member. The record of the proceedings begins with an interchange between the presenting officer and the chairman. The presenting officer is recorded as saying: “Our guidance here in Northern Ireland is that the legislation to be followed remains the 1995 legislation.” In other words, the Howker case had no application within the jurisdiction. The chairman then records himself as saying: “This Tribunal will follow the English Court of Appeal decision …”. The matter was then set out in rather more detail in the appeal tribunal’s statement of reasons for its decision. After recording that the Department submitted that the Howker case was not binding on a Northern Ireland tribunal, the statement records:

“This Tribunal directed:

a)	That even if it were not biding [sic] on the tribunal the Court of Appeal decision in Howker was of highly persuasive authority and would therefore be followed as being, in the respectful view of this tribunal, a correct statement of law

b)	This present appeal would be opened and evidence taken in the usual way and a decision made on the personal capability assessment

c)	If the appellant’s appeal failed under the personal capability assessment the tribunal would go on to consider the separate secondary question of whether the appellant’s mental or physical health would be put at substantial risk if he were found capable of work.”

11.	The appeal tribunal then proceeded to hear the evidence. It awarded the claimant 3 points each in respect of the following physical descriptors, namely, because he could not walk up and down a flight of 12 stairs without holding on, because he could not stand for more than 30 minutes before needing to move around, because he sometimes cannot rise from sitting to standing without holding on to something and because he sometimes cannot bend or kneel, or bend and kneel as if to pick up a piece of paper from the floor and straighten up again. A score of 12 points from the physical descriptors is not enough - see regulation 25 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995. The appeal tribunal also awarded the claimant 3 points in respect of the mental health descriptors, namely, the same three that he had previously been awarded. However, regulation 26(1)(b) of the Regulations provides that in determining a person’s overall score, a score of less than 6 points in respect of the mental health descriptors shall be disregarded. That left the claimant’s total score at 12, and not enough to satisfy the personal capability assessment.

12.	The core of the appeal tribunal’s decision is set out in the final three paragraphs of the statement:

“The evidence and the general nature of the appellant’s condition justified the award of 12 points and of no other physical descriptor points and the appeal therefore fails.

Noting the absence of medication or treatment at the time the Department made its decision, and after having heard his evidence given in some detail, we are satisfied that [the claimant] is not now, and was not at the time of the decision, mentally ill. We accept as accurate the Examining Medical Practitioner’s general concluding assessment of “mild anxiety after he had a stroke; pleasant cooperative manner; not currently depressed”.

Finally, the medical member was satisfied that [the claimant’s] condition places him at no greater risk than someone in average health; a notional return to work would likely be tiring but would place him at no greater risk than he is now. The Howker test, though applied in this case, has not been met.”

13.	The claimant applied for leave to appeal to a Commissioner. The grounds put forward on his behalf by his then representative were as follows:

“1)	[The claimant] was awarded 12 points for physical factors and 3 points for mental health issues. However, ‘the medical member was satisfied that [the claimant’s] condition places him at no greater risk than someone in average health’. [The claimant] would claim the comparison with someone in average health is in error because with the points he has accrued, plus the acknowledgement that a ‘return to work would likely be tiring’, this clearly indicates that his position is not average.

2)	In relation to walking, [the claimant] feels that there is inconsistent consideration of this descriptor. He would claim that if he is deemed to have problems with rising from sitting, bending and kneeling, standing and using stairs, then on the balance of probabilities his own assessment that he would experience discomfort nearer the 400 yard measurement is more likely.”

	In paragraphs 19 and 20 of his skeleton argument Mr Stockman expressly withdrew the “ground that the tribunal has erred in comparing the degree of risk to him to that of someone in average health” and the “grounds that the tribunal has erred in law through inconsistent consideration of the walking descriptor”. We accordingly say nothing further about these particular grounds.

14.	Leave to appeal to a Commissioner was then granted by the chairman. In granting leave, he identified the following point of law as arguable:
	
“Whether the decision in Howker -v- Secretary of State for Works [sic] and Pensions was applicable to the appeal and if applicable, whether it was correctly applied.”

	The Separate Systems

15.	It is important to appreciate that the terms “the United Kingdom” and “Great Britain” are not synonymous.  “Great Britain” consists of England and Wales with Scotland.  “The United Kingdom” consists of Great Britain and Northern Ireland.  Accordingly, Northern Ireland is part of the United Kingdom but not part of Great Britain. For very many years the system of social security in Northern Ireland has been parallel to, but separate from, the system in Great Britain.  The two systems are embodied in separate legislation.  Formal relations between the two systems are now dealt with by sections 87 to 89 of the Northern Ireland Act 1998.  Sub-section (1) and (2) of section 87 are as follows:

	“(1)	The Secretary of State and the Northern Ireland Minister having responsibility for social security (“the Northern Ireland Minister”) shall from time to time consult one another with a view to securing that, to the extent agreed between them, the legislation to which this section applies provides single systems of social security, child support and pensions for the United Kingdom.

	(2)	Without prejudice to section 28, the Secretary of State with the consent of the Treasury, and the Northern Ireland Minister with the consent of the Department of Finance and Personnel, may make -
	
(a)	arrangements for co-ordinating the operation of the legislation to which this section applies with a view to securing that, to the extent allowed for in the arrangements, it provides single systems of social security, child support and pensions for the United Kingdom; and
	
(b)	reciprocal arrangements for co-ordinating the operation of so much of the legislation as operates differently in relation to Great Britain and in relation to Northern Ireland.”

16.	The relationship between the two systems was described some 15 years ago by an English Tribunal of Commissioners in decision R(SB)1/90, a decision which has been helpfully drawn to our attention at an earlier stage in the appeal.  The question for the Tribunal of Commissioners in Great Britain was whether to follow a decision of the Court of Appeal in Northern Ireland (Carleton - v - Department of Health and Social Services (judgments delivered on 25 June 1987), in preference to a contrary decision of another Tribunal of Commissioners in Great Britain (R(SB)10/88).   The Tribunal of Commissioners followed the Northern Irish decision because of the need for identically worded provisions in both Northern Ireland and Great Britain to be interpreted uniformly.  We stress that, unlike the present appeal, the point was one of pure construction.  Although R(SB)1/90 is not directly in point, we refer to it, and quote from it at length, because of the following helpful description of how the system works:
 
“10.	The difficulty that confronts us in the appeal we have to determine is that the opinion of the Court of Appeal in Northern Ireland is at variance with what was said by a Tribunal of Commissioners in Decision R(SB)10/88.  For in a statement made in paragraph 43 of that decision, albeit such statement was obiter, it was contemplated that a claim for miscellaneous furniture and household equipment needs might be successfully brought under Regulation 30, provided such claim related to one single item.  The Tribunal of Commissioners observed as follows: -

“We should emphasise that nothing that we have written precludes the claim from being made for an individual item under Regulation 30 (Part VIII) of the Single Payments Regulations on the ground that without it there is a serious risk to health or safety.  Such a claim is not a claim for miscellaneous furniture and household equipment needs.  Where more than one item is requested, that is in fact a separate claim in respect of each item.  Tentative suggestions were made in argument that one could ‘dress up’ what is in reality a claim for miscellaneous furniture and household equipment needs in this way.  It will be for the adjudicating authority, in each case, to determine the nature of the claim or claims in this connection.  A claim for example, for a cooker guard (not being a fireguard within regulation 9) on the ground that it was needed for safety of small children, would clearly be outwith regulation 10A and could be entertained under regulation 30.  On the other hand, the miscellaneous collection of items listed by Mr. Goddard at paragraph 23 above, if included in one claim, or a series of contemporaneous claims, might well be concluded to fall within the excepting words in regulation 30. ‘Claim’, in the excepting words of regulation 30 clearly includes, in this context, a number of such claims: see section 6(c) of the Interpretation Act 1978.  On which side of the line the claim falls will be a matter for the adjudication authority, in the exercise of commonsense and in the light of the particular facts, to decide”.

Manifestly, this approach is at variance with what was said by the Court of Appeal in Northern Ireland.  It has also, we were told, proved difficult for adjudication officers to apply in practice.  Which authority are the Commissioners in Great Britain to follow?

11.	We were informed that, immediately before judgment was given by Lord Lowry LCJ, the decision in R(SB)10/88 was brought to the Court’s attention, but it appears fairly clear that the merits of the decision were not argued; the Court did not require that to be done.  However, be that as it may, does a decision of the Court of Appeal in Ireland [sic] operate to bind the Commissioners in England and Scotland?

12.	The Commissioners in Great Britain, exercise their function under legislation which applies to England, Wales and Scotland, but not to Northern Ireland.  However, even within Great Britain, there are two different adjudication systems, one in England and Wales and one in Scotland.  But, as far as social security adjudication is concerned, the same statutory provisions apply.  Nevertheless, the question arises whether the Court of Session in Scotland binds all Commissioners, those resident in England as well as those resident in Scotland, and likewise whether the Court of Appeal in England binds all Commissioners, those resident in Scotland as well as those resident in England.  This question was considered by the Commissioner in paragraph 18 of R(U)8/80.  After stating that he accepted the reasoning of a superior Scottish Court in Watt v. Lord Advocate [1979] SLT 137, he went on to say as follows:

“The question whether I am bound to follow it does not arise.  Curiously I can find no authority on the question whether I would be bound to follow it assuming I disagreed with it.  In Decision R(I)12/75 a Tribunal of Commissioners held in relation to the Law of England that a Commissioner on questions of legal principle is bound to follow decisions of the High Court and Superior Courts, meaning the Court of Appeal and the House of Lords.  So far as I can discover there is no decision as to binding (as opposed to persuasive) effect of Scottish decisions upon the question of legal principle.  In cases such as this where the same legislation applies to both England and Scotland it is clearly desirable that the laws of both England and Scotland should be uniform.  So far as the High Court is concerned there is a well settled practice in revenue and taxation matters where the same statutes apply that courts of first instance keep in line with the courts of Scotland.  An English court follows a unanimous judgment of a higher Scottish court where the question involved is one which turns upon the construction of a statute which extends to Scotland, leaving it to be reviewed if thought fit by the Appeal Court see Re Hartland; Banks v. Hartland [1911] 1 Ch. 459 at page 466.  The reason for this is the need to avoid interpretations which result in one meaning in one country and another in the other; Commissioners for General Purposes of Income Tax for City of London v. Gibbs [1942] AC 402 at 414.  The position of a National Insurance Commissioner [now Social Security Commissioner] is different from that of a High Court Judge.  All Commissioners are Commissioners for Great Britain.  Commissioners who sit in Scotland are sometimes wrongly referred to as Scottish Commissioners.  They are not - they are Commissioners sitting in Scotland.  Moreover the cases dealt with by Commissioners have no territorial connection.  Cases occurring in Scotland are sometimes decided in London.  Cases from the North of England are sometimes dealt with in Scotland particularly where oral hearings are concerned where it is easier for a claimant and his witnesses to travel to Edinburgh.  It is quite obviously highly desirable that the same interpretation be applied on each side of the border.

In my judgment, I would apply to this case the same practice as is applied in the courts of first instance in [the] High Court in revenue and taxation cases, that is to say, I would follow the decision of a higher Scottish Court on a question of construction of the Social Security Act 1975”.

We approve those sentiments.  Indeed, we would take the matter somewhat further.  A decision given by a Commissioner in London on a Scottish matter referred for convenience to London for determination may, on appeal to the Court of Session, be reversed by that superior Court.  Likewise, a decision given in Scotland relative to a matter arising in England may well be overturned by a decision of the Court of Appeal in England.  In other words, decisions given in England or Scotland may be reversed by superior courts of different countries.  It would seem to us to follow from this that pronouncements on common provisions, whether made by the Court of Appeal in England or the Court of Session in Scotland, must be followed, as of necessity rather than for reasons of comity, by all Commissioners of Great Britain.  If it is asked - what happens where a divergence of view is expressed between these two superior Courts, our reply is that the position is no different from that which would obtain were two different Courts of Appeal in England, or for that matter, two different Courts of Session in Scotland, to give divergent views.  Commissioners would have to do the best they could, and the matter might ultimately be resolved by the House of Lords.

13.	However, the position is different in respect of the superior Courts of Northern Ireland.  The social security legislation applicable to that province is different from that which operates in Great Britain.  There can be no question of a decision of a Commissioner in Great Britain being overturned by the Court of Appeal in Northern Ireland, nor can a decision of a Commissioner in Northern Ireland be upset by the Court of Appeal in England or the Court of Session in Scotland.  The legislation and adjudicating authorities are different, even if the relevant statutory provisions applicable to Great Britain and Northern Ireland respectively may in all material respects be the same.  The Commissioners of Great Britain are not bound by decisions of the Court of Appeal in Northern Ireland, and likewise the Commissioners of Northern Ireland are not bound by the decisions of the Court of Appeal in England or the Court of Session in Scotland.  However, there has long been a tradition in this country that, where the same Act applies both in England and Scotland, but where, unlike the case of social security legislation, there is no interchange of function between adjudicating authorities resident in each country, then in the interest of comity there should be uniform interpretation.  Thus in Re Hartland, Banks v. Hartland [1911] 1 Ch. 459, at page 466, Swinfen Eady J. said as follows: -
		
“Where the exact point has been raised by a special case, and fully argued, and decided by a unanimous judgment of the Court of Session, and where the question is simply one that turns upon the construction of a statute which extends to Scotland as well as to England, I think my duty as a judge of first instance is to follow that decision, leaving the parties, if so advised, to have it reviewed elsewhere”.

In the present context, we consider that Commissioners can be equated with “judges of first instance”.

14.	Moreover, the same approach would also appear to have been adopted by the Court of Appeal (see Abbott v. Philbin (Inspector of Taxes) [1960] 1 Ch. 27).  Further, when the decision of the Court of Appeal in Abbott v. Philbin came to be considered on appeal to the House of Lords [1961] A.C. 352, Lord Reid observed, inter alia, at page 373 - 

“In the present case the Court of Appeal, though not bound to do so, very properly followed the decision of the Court of Session in Forbes’s Trustees v. Inland Revenue Commissioners.  I say very properly, because it is undesirable that there should be conflicting decisions on revenue matters in Scotland and England”.
15.	Although the social security legislation governing Northern Ireland is not contained in the same Act as applies to Great Britain – and to that extent the position is different from that arising in Re Hartland and Abbott v. Philbin – we nevertheless consider that, where the relevant provisions are identical (as they are in this case), the same judicial approach should equally be adopted.  At the end of the day, the legislative fount of the enactments found both in Great Britain and the province of Northern Ireland is the same, namely Parliament at Westminster.  Moreover, it would be naturally expected that, where the statutory provisions operative both in Northern Ireland and Great Britain are identical, such provisions should be interpreted uniformly.  Support for this contention can also be found in section 142 of the Social Security Act 1975, sub-section (1) of which reads as follows -

“The Secretary of State may with the consent of the Treasury make arrangements with the Northern Ireland Department (“the joint arrangements”) for coordinating the operation of this Act and the Social Security (Northern Ireland) Act 1975 with a view to securing that, to the extent allowed for in the arrangements, those Acts provide a single system of social security for the United Kingdom”.

Regulations have been made providing for a substantial degree of assimilation; we refer to the Social Security (Northern Ireland Reciprocal Arrangements) Regulations 1976 [SI 1976 No. 1003].  Manifestly, it is in contemplation that the same social security system should within limits operate both in Northern Ireland and in Great Britain, and in pursuance thereof, it would be natural to suppose that the same interpretation should be given throughout the United Kingdom to identically worded provisions.  Accordingly, in our judgment, it is incumbent upon us, particularly as the decision of the Court of Appeal in Ireland [sic] was unanimous and notwithstanding that the Court chose not to have R(SB)10/88 argued, to follow that decision rather than that of the Tribunal of Commissioners in England in R(SB)10/88.”

17.	Although it is not strictly necessary for us to say so, it appears to us that, in relation to questions of construction common to both jurisdictions, the above passages reflect the law in both Northern Ireland and Great Britain.

	Regulation 27

18.	In its original form regulation 27, which is headed “Exceptional circumstances” appeared in both the Great Britain Regulations and Northern Ireland Regulations in the following form. The personal capability assessment was then called the “all work test” but nothing turns on the change of name. The respective sets of Regulations were the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311) and the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 (SR 1995/41):
 
“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 approved by the Department –

(a)	he suffers from a previously undiagnosed potentially life-threatening condition; or

(b)	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; or

(c)	he suffers from a severe uncontrolled or uncontrollable disease; or

(d)	he will, within three months of the date on which the doctor so approved examines him, have a major surgical operation or other major therapeutic  procedure.”

	The Great Britain version substitutes the words “Secretary of State” for the word “Department”.

19.	Objection was taken in England to the words “in the opinion of a doctor approved by the Secretary of State” on the grounds that such words were ultra vires and inconsistent with the scheme of adjudication and appeals set up by the Social Security Administration Act 1992. In 1996, a Mr Moule brought a test case in the Administrative Court, which is part of the High Court in London. The name of the case is R -v- Secretary of State for Social Security ex parte Adrian Michael Moule [1996] EWHC Admin 74. The case was heard by Collins J who gave judgment on 12 September 1996. The judgment is a complex one because it analyses the relationship between the Social Security Administration Act 1992 and the Social Security Contributions and Benefits Act 1992. The judge accepted the submissions of Mr Richard Drabble QC, who appeared for Mr Moule, and decided that the words in question were indeed ultra vires. The following short passage from his judgment is sufficient for present purposes:

“34.	I bear in mind that these regulations followed a positive resolution and that the court will be very slow to strike down regulations in those circumstances, and indeed will endeavour to uphold them if reasonably possible. It seems to me that I must consider what effect the regulation produces. Whilst it may not explicitly transfer the power of determination from the adjudication officer to the doctor, that is in reality what it does and, in so doing, it removes any meaningful appeal. I think Mr Drabble is right when he submits that the apparently wide words of section 171D must be read in context and that regulations made under that section cannot be inconsistent with, or in effect override, the regime set up by the Administration Act. This, in my judgment, regulation 27 is ultra vires in so far as it enacts that the doctor’s opinion will result in a person being treated as capable or incapable of work.

35.	Both counsel agree that the offending words in regulation 27 – namely “in the opinion of a doctor approved by the Secretary of State” – can be deleted and the regulation would then be unassailable. …”

20.	The consequence of the judgment in the Moule case was that the opening words of regulation 27 of the Great Britain Regulation, then read:

“27.	A person who does not satisfy the all work test shall be treated as incapable of work if –“

	That opening text then being followed by paragraphs (a), (b), (c) and (d) in their original form. The decision of a High Court judge sitting in the High Court in London had no direct effect within Northern Ireland and no decision was ever obtained from the High Court in Belfast. Regulation 27 of the Northern Ireland Regulations remained in its unamended form. However, the relevant statutory legislation was substantially the same. Consequently, had the point been litigated in Northern Ireland there was a strong likelihood that Collins J’s analysis of the Great Britain legislation would have been accepted as applicable to that in Northern Ireland. If his analysis had been accepted then his conclusion was, we think, inescapable.
 
21.	In Great Britain matters might have been left as they were following the Moule case. Inaction would not, however, have been satisfactory in Northern Ireland. In the event, the opportunity was taken to carry out extensive re-drafting to the regulation (regulation 27) in both jurisdictions. In Great Britain this was achieved by regulation 2(9) of the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (SI 1996/3207). In Northern Ireland it was achieved by regulation 4(8) of the Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations (Northern Ireland) 1996 (SR 1996/601). As a consequence of these amending Regulations, regulation 27 then read as follows in both jurisdictions:

“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 Department;

(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.”

The Great Britain version again substitutes the words “Secretary of State” for the “Department”.

22.	The next event, so far as Great Britain was concerned, was the Howker case. That was an appeal in which Mr Eric Howker successfully argued that the new regulation 27(2) was not validly made and that the old version, which it will be recalled, included at 27(2)(b):

“(b)	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; or”

	had never been validly excised from the regulation. The Court of Appeal in England and Wales accepted his arguments and made the declaration which is quoted at paragraph 6 herein. It did so because it was satisfied that the correct procedure for amending regulation 27 had not been complied with. Since this lies at the heart of the Court’s judgment we set out the procedure in the words of Peter Gibson LJ who gave the main judgment:

“6.	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.

7.	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”.

8.	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.”

9.	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.”

10.		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 containing 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.”

11.	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.”

12.	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.

13.	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 amendment has an effect in changing the wording but only to clarify its meaning to what it was always believed to have meant. This may arise because lawyers have realised it could mean something different. However, no one will lose or gain, the amendment simply secures what has always been the interpretation of the present wording.”
	
In contrast “adverse” means:

“This is used when existing claimants will lose money in future. It may only involve a few people and the loss may be of money they clearly should not have had – but there is a loss.”

14.	By letter dated 28 October 1996 an official of the Department, Mr Axton, presented to the Committee the Department’s proposed amendments to the 1995 Regulations. In the letter it was said that the new regulations were “to restore the policy intention” following the decision in ex p. Moule and that the 1995 Regulations were redrafted to allow adjudication officers to consider medical evidence other than that of the Department’s examining doctor. In an Annex to a paper prepared for a meeting of the Committee on 6 November 1996 the Department said that the new provision was “more precisely defined to reflect the fact that it must be interpreted and applied by lay adjudicating authorities”. The indicator given to the proposed amendment to Reg. 27 was “neutral”.”

23.	Peter Gibson LJ then went on to record the further history of the matter. It is not, however, necessary for us to repeat this for the reason that by the time the matter had reached the Court of Appeal it had become common ground that the indicator “neutral” was wrong and that the correct indicator should have been “adverse”. Had the proposed amendment been so described the Social Security Advisory Committee would have required a formal reference to it. The Court of Appeal accepted that if that had happened, the subsequent history of the proposed amendment might have been different. One possibility was that it would have been withdrawn as happened to another amendment, relating to severe disablement allowance, which the Committee did ask to have referred to it. Alternatively, it might have been reformulated to meet any criticisms which the Committee might have made. As it was, a formal reference was not required on the basis that the amendment was “neutral”. Indeed, the Department for Work and Pensions was asked to confirm that the indicator was correct and did so - see paragraph 15 of Peter Gibson LJ’s judgment. Later, when introducing the amendment in the House of Lords, the Minister responsible said that the amendment was being introduced as a result of the Moule case. He went on to say:

“We are redefining the provision more precisely in the light of the court’s decision. But, as I said, it is not our intention that anyone who would have been covered originally should now be excluded.”

	See paragraph 16 of Peter Gibson LJ’s judgment.

	Before the Court of Appeal it was clear that that statement was wrong – although no one suggested that the Minister who made it was aware of its inaccuracy.

24.	The Court of Appeal proceeded on the basis that the “neutral” indicator had misled the Committee which, as a consequence, did not require the amendment to be referred to it. That then raised the question, what were the consequences? Peter Gibson LJ began his answer, at paragraph 32, by saying:

“32. 	It is not, I think, in dispute that the question whether Reg. 27 is invalid turns on the true construction of the 1992 Act. It is to the enabling Act that one must look to see if any challenge to subordinate legislation is available (Boddington v British Transport Police [1999] 2 AC 143 at p. 160 per Lord Irvine of Lairg L.C.). …”

	At paragraph 34 he said:

“ … In Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295 at p. 365 Lord Diplock said that the court had jurisdiction to declare invalid subordinate legislation approved pursuant to the affirmative resolution procedure if the Minister acted outwith the legislative powers conferred on him by the enabling statute and that was so whether the order was ultra vires by reason of its contents or by reason of the procedure followed prior to its being made. …”

	After dealing with a number of submissions which had been made to the court, Peter Gibson LJ, then proceeded as follows:

“35.	I come next to the question whether in the context of the statutory scheme what occurred in the present case rendered the making of Reg. 27 by the Secretary of State invalid. Mr Drabble [who appeared for Mr Howker] has concentrated attention on the role of the Committee in the statutory scheme and the part played by the Secretary of State through his officials in procuring the Committee’s agreement, thereby enabling the regulation to be made. In my judgment it is clear that notwithstanding the fact that the Committee’s role was, as its name implies, advisory, it was intended by the statutory scheme that the Committee’s advice on the proposed regulations would be received by the Secretary of State and laid before Parliament unless the Committee agreed to no reference to it. This is emphasised by the mandatory requirement in s. 172(1) that the Secretary of State “shall” refer the proposals to the Committee and by the requirement, even in a case of urgency when the Secretary of State is empowered to dispense with a reference, to refer the regulations so made to the Committee as soon as practicable after they are made, and the obligation on the Secretary of State to explain to Parliament, if he proposes not to give effect to the Committee’s recommendations, his reasons why not. Plainly in the absence of the Committee’s agreement Parliament was intended to have the benefit of the Committee’s advice so as to be able to assess the new regulations.

36.	In that context the agreement of the Committee not to have a reference to it of proposed regulations assumes importance. Further, Parliament plainly intended that the agreement of the Committee should be an informed agreement, and the obligation under s. 170(4) on the Secretary of State to provide such information as the Committee reasonably requires is equally plainly relevant, provided that the Committee has so required. In my judgment in the agreed practice to which I have referred in para. 13 above the Committee can be taken to have made a requirement for the purposes of s. 170(4). As the Commissioner said in para. 15 of his decision of the officials of the Department providing information and assistance in relation to the detail and intended effect of a proposal:

“The Committee’s assumption that it can rely on these officials to provide full, balanced and objective information without relevant points being withheld or obscured is in my judgment an entirely proper one, wholly consistent with the intention of section 170(4). The Committee members should be able to rely implicitly and without question on the completeness of what they are told [by] those whose duty it is to assist them. It is quite inconsistent with the scheme of Part XIII of the Act for it to be thought otherwise.”

37.	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. That is so whether or not the officials acted innocently. There is nothing in the statutory provisions to suggest that Parliament would have intended so defective a procedure adopted by the Secretary of State, when matters were entirely under his control, to result in a valid regulation.”

25.	Pausing there, we read the thrust of what is being said, and the basis on which the amendment was struck down, as being the failure by the Secretary of State to follow the procedures laid down in the Act. It is not suggested that, by reason of its being misled, the Committee’s agreement that the proposed amendment should not be referred to it was without effect. Indeed, as we understand it, that was not how the matter was argued on behalf of Mr Howker before the Court of Appeal. Quite the contrary; see paragraph 29 of Peter Gibson LJ’s judgment, although it appears that it was an argument before the Commissioner.  The fact that the Court of Appeal proceeded on the basis that it was the failure of the Secretary of State to follow the proper procedure, rather than the absence of agreement on the part of the Committee, is of some significance to what we have to decide. 

26.	Mance LJ merely agreed with the other two Lords Justice but Hale LJ (as she then was) expressed herself clearly. After quoting from Lord Diplock in the Hoffmann-La Roche case, she said:

“53.	The procedural irregularity in the making of this regulation was in my view such as to render it invalid. Parliament laid down a very specific consultation process in sections 170 to 174 of the 1992 Act, the nature and purpose of which is obvious in the context of the social security scheme as a whole. Parliament must have intended that the Secretary of State comply with it, and comply with it properly, before making regulations: see the observations of Glidewell LJ and Sir John Donaldson MR in R v Secretary of State for Social Services ex parte Cotton; R v Secretary of State for Social Services ex parte Waite, Court of Appeal, 14 December 1985. In that case, the Secretary of State had consulted the Committee but had not put draft regulations before them. Sir John Donaldson considered that the proposals were not sufficiently precise for this to be a proper consultation and would have held the resulting regulations invalid on that ground. Glidewell and May LJJ held that the Secretary of State had done enough to inform the Committee of what was proposed, although Glidewell LJ was concerned that although he had complied with the letter he had not complied with the spirit of the legislation. All three members of the court approached the case on the basis that a failure to comply with the consultation process could invalidate the regulation.

54.	In this case, there was clearly a failure to comply. The Committee had agreed a particular formula with the Department for classifying proposals so that they could decide whether or not to require a reference: this was information which they reasonably required and the Department had agreed to supply to them. The information supplied in writing was seriously inaccurate, as was the explanation given at the meeting where the Committee considered this. The Commissioner left open the question of whether this was deliberate. It was not necessary for him to find that it was. The officials had it within their power to give the Committee the correct information. They and through them the Secretary of State were responsible for the misinformation. The Secretary of State should not have made the regulation without putting it right. This was a material irregularity in the procedure laid down by Parliament and invalidates the regulation which resulted.”

	The Court of Appeal then made the declaration which we have set out at the beginning of this decision.

	Applicability of the Howker case

27.	The reasoning of the Court of Appeal is binding on tribunals and Commissioners in Great Britain. It has been followed by Great Britain Commissioners in relation to other amendments to the Social Security (Incapacity Benefit) (General) Regulations 1995. In R(IB)3/04, Mr Commissioner Jacobs held that while the actual decision was limited to regulation 27(b), the reasoning on which the Howker case was based applied to other amendments, in particular the amendment to paragraph 14 of the schedule to the Regulations. That descriptor is, “remaining conscious …” - see paragraphs 5 to 12 of his decision. Mr Commissioner Jacobs decided that the amendment to paragraph 14 had been made without proper compliance with the statutory machinery and was, as a result, of no force or effect. The capacity for work of the appellant before him fell to be determined under the terms of paragraph 14 as originally enacted. In paragraphs 13 and 14 of his decision he gave general guidance relating to the Court of Appeal’s reasoning to tribunals in Great Britain. Given the view which we take it is unnecessary for us to set out that guidance. In CIB/1239/2004, Mr Commissioner Henty reached a similar conclusion in relation to the amendments made to paragraph 3 of the Schedule to the 1995 regulations. (Paragraph 3 focuses on a person’s ability to sit comfortably.)

28.	Two matters were, however, common ground between the parties. First, decisions of the Court of Appeal in England and Wales do not bind courts and tribunals in Northern Ireland. Secondly, the reasoning of the Court of Appeal in the Howker case is not directly applicable in Northern Ireland, the reason being that the statutory procedure for amending the 1995 Northern Ireland regulations was different from the procedure required for the amendment of the Great Britain Regulations.

29.	In Northern Ireland the matter was governed by section 149 and paragraph 10 of Schedule 5 to the Social Security Administration (Northern Ireland) Act 1992. Section 149 is as follows:

“(1)	The Department may from time to time – 

(a)	refer to the Social Security Advisory Committee for consideration and advice such questions relating to the operation of any of the relevant enactments as the Department thinks fit (including questions as to the advisability of amending any of them);

(b)  …

(2)	Subject -

(a)  	to subsection (3) below; and

(b)  	to section 150 below,

where the Department proposes to make regulations under any of the relevant enactments, it shall refer the proposals, in the form of draft regulations or otherwise, to the Social Security Advisory Committee.

(3)	Subsection (2) above does not apply to the regulations specified in Schedule 5 to this Act.

(4)	The Department shall furnish the Social Security Advisory Committee with such information as the Committee may reasonably require for the proper discharge of its functions.

(5)	In this section “the relevant enactments” means” – [and there then follows a list which, it is not in dispute, includes the Regulations we are considering].”

	Section 150 is not relevant for present purposes but subsection (3) and Schedule 5 are. The Schedule is entitled “Regulations not requiring prior submission to Social Security Advisory Committee”. Paragraph 10 of the schedule is as follows:

“10.	Regulations making only provision corresponding to provision contained in regulations made by the Secretary of State or the Lord Chancellor in relation to Great Britain.”

	It is not in dispute that the statutory procedure applicable to the Northern Ireland amending Regulations was that set out in section 149(3) and paragraph 10. Since the Northern Ireland amending Regulations corresponded to the provisions which were being made in Great Britain, there was no requirement to “refer the proposals, in the form of draft regulations or otherwise, to the Social Security Advisory Committee”. The Great Britain Regulations were made by the Secretary of State on 19 December 1996 and came into force on 6 January 1997. On 8 November 2002, nearly six years after they were made, the Court of Appeal declared that the statutory requirements applicable in Great Britain had not been complied with. As a consequence, it made the declaration set out at the beginning of this decision. What effect, if any, did that decision and declaration have on the Northern Ireland Regulations?

30.	In approaching this question we proceed on two bases.  Firstly the rationale for the exception at paragraph 10 is that if the Great Britain procedures have been complied with, a separate reference of Northern Ireland legislation would simply duplicate the work of the Committee unnecessarily.  The legislation is, however, completely silent on the Great Britain procedures.  Paragraph 10 simply assumes that if the Great Britain Regulations are made then everything that should have been done has been done.  Not only is there no statutory requirement for the Northern Ireland authorities to check that the Great Britain procedures have been carried out but those procedures are not mentioned at all.  Our second basis of approach is that it was the intention of all concerned that the two sets of Regulations should be substantially identical. The effect of the Court of Appeal’s decision was, certainly, that from 8 November 2002, the Northern Ireland Regulations no longer corresponded with the Great Britain Regulations. There was discussion before us as to the effect of the Order in the period prior to 8 November 2002. We do not consider that a clear answer emerged and we accordingly resolve the debate by assuming in the claimant’s favour that the invalidity of regulation 27(b) operated back to the coming into operation of the regulations (6 January 1997) and, possibly, to the point when they were made. If that is right, it can be argued that the Northern Ireland Regulations have never corresponded to the Great Britain Regulations in the form in which they are to be applied following the decision of the Court of Appeal.

31.	However, that, to our minds, brings into account an important constitutional principle. A court of competent jurisdiction can declare regulations invalid. However, until it does so, unchallenged regulations must be obeyed and enforced. It is not open to either the subject or officers of the Department to decide that a particular regulation is invalid and refuse to abide by it. If either the Department or a subject considers that regulations are defective then any challenge, to be effective, must be made in appropriately constituted proceedings before a court with the necessary jurisdiction. Only if the court declares the regulations, or some part of them, invalid can that invalidity be acted upon. The precise wording of the declaration or other order of the court will be of the utmost importance. Until that time, effect must be given to the regulations and they must be treated as valid. Any other rule would divert jurisdiction from the court and confer it upon individuals. That way lies chaos.

32.	Having said that, we consider that the answer must lie in the words of section 149(3) and paragraph 10. Crucial to our understanding of those provisions is the fact that their entire focus is on the making of the relevant regulation. We do not think that there can be any dispute about this. It is, however, worth noting that section 149 says nothing about what is to happen after the relevant regulations have been made. There is no provision which requires them to be reviewed from time to time. There is no provision requiring advice to be obtained from the Social Security Advisory Committee if circumstances change. More particularly, there is no requirement to do anything if the Great Britain regulations cease to correspond with those in Northern Ireland. It is, for example, entirely possible that the regulations in Great Britain may be repealed leaving those in Northern Ireland still in being. This must happen occasionally even if the lack of correspondence may not last for long. No one has suggested that in such a case a reference must be made to the Committee or that the Northern Ireland regulations cease to be valid because there are no corresponding regulations in Great Britain.

33.	If we are right that the focus is on the making of the regulations, the time for considering whether there are corresponding Great Britain regulations is when the Northern Ireland regulations are made. That is the point at which the regulations have to be scrutinised by someone in the Department in Northern Ireland. What subsequently happens to the Great Britain regulations is neither here nor there and, in any event, cannot be foreseen. Does it make any difference that a relevant Great Britain regulation is subsequently held to be invalid if, on the assumption we have made, that invalidity dates back to the making of those regulations? We consider that there are two ways of looking at the matter. First, that the comparison is to be made with the actual text of the Great Britain regulations as that text stands at the time of the making of the Northern Ireland regulations. If that is the correct way of looking at the matter then the Howker case has no effect upon the Northern Ireland regulations. The alternative is that the comparison must be with the Great Britain regulations but only in so far as they are valid. This is something which may not be known for many years. In the Howker case nearly six years passed before the ruling of the Court of Appeal in England and Wales.

34.	The choice is a stark one. No authorities were cited to us which throw any light on the question of construction. That being so, we feel that we must choose the first of our alternatives. If the time for making the comparison is when the Northern Ireland regulations are made, we do not see how it can be made other than by looking at the text of the Great Britain regulations as they stand at that time. We do not consider that section 149(3) and paragraph 10 require those responsible in Northern Ireland to carry out an investigation as to whether the statutory machinery in Great Britain has been complied with. Indeed, neither the subsection nor the paragraph say anything at all about such machinery. Paragraph 10 simply refers to “regulations made by the Secretary of State or the Lord Chancellor in relation to Great Britain”. Nor do we think that an investigation must be undertaken into a possibility of legal challenge to the Great Britain regulations. It would, we consider, be both unrealistic and pointless to do so. All the more so given that any challenge would be a matter for either the courts of England and Wales or the courts in Scotland but not those in Northern Ireland.

35.	Indeed, we do not see how the Department for Social Development could normally become a party to the usual kind of appeal proceedings involving, first, an appeal tribunal in either England and Wales or Scotland and then a Great Britain Commissioner. If the validity of a “corresponding” Great Britain regulation is challenged the Department will normally only come to learn of the challenge after a Great Britain Commissioner has given a decision and then only if the decision is reported or otherwise receives publicity. If there is then an appeal to the Court of Appeal in England and Wales or its equivalent in Scotland, the Department for Social Development, if it considers that there are good arguments for upholding the validity of the regulation, can make representations to the Department for Work and Pensions. However, the latter is under no obligation to take note of such representations. Even if it does but decides to present different arguments to the Court of Appeal, the Department for Social Development has no right to appear and make submissions as to the validity of the regulation.  Similarly, if Mr Howker had been resident and receiving benefit in Northern Ireland, rather than England and Wales, and had wished to challenge the Northern Ireland regulation 27 on the grounds that the equivalent in Great Britain was ultra vires – that is, on the ground on which he succeeded before the Court of Appeal – we do not see how, realistically, he could have done so. We do not consider that, in practice at any rate, a tribunal, Commissioner or court in Northern Ireland would have been prepared to rule on the vires of a statutory instrument which did not apply within the jurisdiction. Further, as indicated, section 149(3) and paragraph 10 make no mention of any procedure which is to be adopted in Great Britain. The proper place to challenge the vires of a Great Britain regulation is either the courts of England and Wales or those sitting in Scotland. It is difficult to see how someone who is resident and receiving benefit in Northern Ireland can acquire the necessary standing to litigate in either England and Wales or Scotland in order to test the vires of a regulation which does not extend to Northern Ireland. All this suggests to us that the process envisaged by section 149(2) and paragraph 10 is a mechanical one of comparing text at the time when the regulations are being made.

36.	In our judgment the only way in which section 149(3) and paragraph 10 can work is by a comparison of actual texts. What subsequently happens to the Great Britain text is irrelevant. If part of it is repealed, the Northern Ireland regulations are unaffected. We do not think that the fact that some part of the Great Britain text is later declared invalid, rather than being repealed, affects the matter. This would clearly be so if the invalidity dated from a time after the making of the Northern Ireland regulations. In the circumstances we do not consider that it makes any difference if the invalidity dates from the making of the Great Britain regulations.

37.	It follows that the appeal tribunal erred in law in following the Howker case on the basis that it was a correct statement of the law.

38.	Mr Stockman raised a number of other points which would arise if we were of the opinion that the Howker case applied within the jurisdiction. Since we decide otherwise, these points fall away and we do not consider them. It follows that Great Britain decisions R(IB)3/04 and CIB/1239/2004, and the reasoning on which they are based, have no application in Northern Ireland.

	Human Rights – Article 14 and Article 1 of the First Protocol

39.	Mr Stockman submitted, if we were against him on the applicability of the Howker case, and on the basis that it is a contributory benefit, that incapacity benefit is a property right falling within Article 1 of the First Protocol to the European Convention on Human Rights. If the rules for entitlement to benefit which applied in Northern Ireland were stricter than those applicable in Great Britain, then that was discrimination and a breach of Article 14 of the Convention when read in conjunction with Article 1 of the First Protocol. Article 14 provides as follows:

“Prohibition of discrimination
	
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

40.	Mr Stockman submitted that “national origin” in race discrimination cases has been held to include origins in terms of separate nations within the United Kingdom and he relied upon Northern Joint Police Board -v- Power [1997] IRLR 610, in support of that proposition. He also submitted that discrimination can be direct or indirect. More persons of English, Welsh or Scottish origin will benefit from the Howker case than will those of Northern Irish origin.

41.	To begin with it must be remembered that Northern Ireland is a separate jurisdiction with its own law of social security. It is quite true, as we think we have made apparent, that that law is intended to march in step with that in the United Kingdom. Indeed, in the present case we accept that the original intention was that regulation 27 should be identical in the two jurisdictions. It is only because of the peculiar history of the Great Britain regulation that divergence has come about. It was not something which was intended. Nevertheless, divergence is not prohibited by the law of either jurisdiction nor, so far as we are aware, by any European provision. Divergence does sometimes occur. There may be good reasons in the future why the two systems may contain differences. Further, in relation to United Kingdom citizens at any rate, Northern Ireland social security law applies to everyone resident in Northern Ireland irrespective of where in the United Kingdom they came from. In Great Britain the relevant law is similarly applied.

42.	Mr Stockman tries to bring himself within the words “national or social origin” in article 14. Prima facie, that would not appear to be the case. The applicant for incapacity benefit in Northern Ireland receives different treatment from those in Great Britain not because of any of the matters referred to in Article 14 but because he or she is resident in Northern Ireland.

43.	Northern Joint Police Board -v- Power does not, in our judgment, assist. Mr Power applied for the post of Chief Constable of the Northern Constabulary. He was unsuccessful. He attributed his lack of success to the fact that he was English rather than Scots. An industrial tribunal held, as a preliminary point, that discrimination as between English persons on the grounds of race fell within section 3(1) of the Race Relations Act 1976. Mr Power’s case was based on racial discrimination. The tribunal decided that the Scots and the English are not separate racial groups defined by reference to ethnic origins. However, they are separate racial groups defined by reference to “national origins” and in that sense Scotland and England are “nations”. The Employment Appeal Tribunal sitting in Scotland upheld the tribunal. Despite the use of the expression “national origins”, the case was clearly one of racial discrimination which, assuming all other matters were satisfied, would have fallen squarely within Article 14. The ethnic origins of the Scots and the English were substantially the same but there were other, distinct, national differences. That is not the present case.  There is no question of discrimination on racial grounds between persons residing in Northern Ireland.  All are affected in an equal manner by the legislation.

44.	Further, we do not think that a case for indirect discrimination can be made out. The population of Great Britain is probably about 35 times that of Northern Ireland. More persons of English, Welsh and Scottish origin will benefit from the Howker case. To our mind, the essential point is that they will cease to benefit if they move to Northern Ireland and become subject to the Northern Ireland legislation.

45.	The judgments of the House of Lords in R -v- Secretary of State for Work and Pensions ex parte Carson and R -v- Secretary of State for Work and Pensions ex parte Reynolds [2005] UKHL 37, were delivered recently. We have considered whether to seek further submissions from the parties but have decided against doing so. Only Mr Maguire made any reference to these cases and that reference was not central to his arguments. Further, it appears to us that nothing we have said is inconsistent with the views of the majority of their lordships.

	Other grounds

46.	It was argued before us that the passage in the statement of reasons that “Finally, the medical member was satisfied that [the claimant’s] condition places him at no greater risk than someone in average health; …” meant that this particular question had been delegated to the medical member and that the legally qualified chairman had reached no conclusion on the matter. We do not read the statement in this way although it would have been better if the passage had been phrased differently. Incapacity Benefit appeals are normally heard by a legally qualified chairman sitting with a medically qualified member. Such tribunals are  constituted in order to bring together legal and medical expertise. The decision of a tribunal will normally be arrived at by an exchange between the members relating to their respective fields of expertise. On medical matters the views of the medical member can usually be expected to predominate although experienced chairmen normally have acquired much medical knowledge and vice versa. The fact that in reaching their decision the views of one member have predominated on a matter within his or her particular field of expertise is irrelevant provided the decision is the agreed decision of the tribunal. In stating matters as he did the chairman was not suggesting that he did not agree with the medical member or had not applied his mind to the matter. On the contrary, he would not have mentioned it if he had not agreed with the medical member. The decision, including this part of it, is clearly the decision of the appeal tribunal.

	Postscript

47.	With effect from 10 February 2005, the Northern Ireland regulation 27 has been amended to take account of the Howker case by regulation 2 of the Social Security (Incapacity for Work) (General) (Amendment) Regulations (SR/2005/15), which was made on 13 January 2005. Given the vicissitudes of this particular piece of legislation we think it appropriate to set out regulation 2 in its entirety.  The heading is “Amendment of the Social Security (Incapacity for Work) (General) Regulations”. The wording is:
	
2.	For regulation 27 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 (exceptional circumstances) there shall be substituted the following regulation - 
	
“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 was 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.”

	This is, accordingly, the version of regulation 27 which tribunals in Northern Ireland should apply from and including 10 February 2005.

	Conclusion

48.	For the reasons which we give, we allow the appeal but give a decision to the same effect as that of the appeal tribunal.

(signed):  	J A H Martin QC

Chief Commissioner

(signed):  	M F Brown

Commissioner

(signed):  	J P Powell

A Great Britain Commissioner
Acting as a Deputy Commissioner in Northern Ireland

5 September 2005