I have an Incap. appeal coming up in which the sitting descriptor is key. My client should be helped by CIB/1239/2004 (which is the one that confirmed the 1996 amendments to this descriptor were ultra vires as per Howker etc). However the decision on her claim was made before this Commissioners decision, so does this mean she could be stung by the anti test case rule?

This would be unfair given that many of us have been arguing for the last few months (with some desgree of success) that tribunals should be applying the unamended regs for all descriptors post Howker.

The DWP guidance issued in DMG Memo Vol 3 12/04 following CIB/1239/2004 does hold that the anti-test case rules apply prior to the date of that decision.

However, Paul Stagg argues in the discussion forum thread Tribunal of Commissioners\' Decision on Defective Claims that –

'In English law, a judicial decision (except in certain limited cases involving European Union law) is treated as declaring the law as it always has been. So under the Commissioners' decision, reg 76(2) is and always has been ultra vires, and any decision not to make a decision on a claim is to be treated as a decision to refuse benefit.'

Even if there is an issue of the application of the anti-test case rule, Commissioner Jacobs in CIB/884/03 (now R(IB)3/04), where he held the amendment to the 'remaining conscious' descriptor was ultra vires, said –

'The other amendments made to the 1995 Regulations by the 1996 Regulations are not in issue in this case. Tribunals dealing with cases involving those amendments will have to decide whether they are covered by the reasoning in Howker, which I have applied in this decision. Mr Lewis told me that all those amendments were described to the Social Security Advisory Committee as “neutral” in their potential effect on claimants. The issue for tribunals will be whether that was an accurate description.' (paragraph 13)

This would support an argument that the relevant test case date is that of the Howker decision, R(IB)3/03, given on 8 November 2002.

What do other people think?

(I really don't feel qualified to comment on this but it is Friday afternoon)

In an ultra vires decision if a court says that a regulation was made without authority from an Act of Parliament then if not successfully appealed the relevant regulation can't have been okay one minute and not okay the next, surely it can never have been enacted properly ever, even though its vires had escaped scrutiny up to the point of the decision?

However, if a court is merely clarifying an interpretation of an Act or regulation (like in for instance Moyna), then you can say that from such and such a date this must mean that, but beforehand it must have meant the other.

So does it matter what kind of decision the higher court is passing down?