I'm quite new to all this and am a bit puzzled by something I keep seeing on different threads.
What does 'ultra vires' mean?

Any explanations gratefully received!

Ul`tra vi´res

Adj. 1. ultra vires - beyond the legal power or authority of a person or official or body etc; "an ultra vires contract"

Adv. 1. ultra vires - beyond the scope or in excess of legal power or authority

It is latin for "beyond strength" (hope no latin teachers read this and make me grafitti the exact translation in 100 foot high letters all over the place a la Life of Brian).

Usually it is used to refer to the situation where an Act of Parliament gives certain powers to a Minister to make regulations and the Minister then goes and makes regulations which in fact go beyond the powers that are granted by the Act- such regulations can, if a court agrees, be said to be "ultra-vires" and will have no effect as law- because only Parliament or Ministers acting with proper authority from Parliament can make the law.

Or a for instance... I currently decide Housing Benefit entitlement to Housing Benefit & Council Tax Benefit in a London Borough Council.

If I decide that I am not going to award HB because they have the 'wrong colour hair', are wearing the 'wrong clothes' etc. I am acting 'Ultra Vires'. I have no power or authority in law to do what I have done. My decision has no basis in law, and therefore it can not stand as a decision. I may however, 'gloss-up' my decision and write something like, "the law says that you are not entitled to Housing Benefit".

However, the problem faced by many people claiming benefit is that when people like me make these types of illegal decisions, it takes someone like you, to 'step in' and challenge me. Otherwise the person claiming the benefit (or whatever the decision has been made about), gets right royally stuffed...

N.B I have never knowingly made 'ultra-vires' decisions, and would never disrespect a persons rights so completly, and this posting is illustrative only !!! However, not everyone making legal decisions is as aware of their responsibilities as they might be.... Look out for them, they do exist....

I think you should come clean and tell us what colour hair you like and what style of clothes you approve of, so that claimants within your jurisdiction will have a better chance of success!

Just to illustrate the point further, in 1995 the Government introduced an amendment to Income Support General Regulation 52 (capital jointly held). The outcome for a given property was that the claimant's share of it had to be valued as a proportionate share of the value of the property as a whole, assuming it was empty. This was unfair if one or more co-owners were still living in the property and unwilling to move out to allow a sale with vacant possession and unwilling to buy the claimant's share at full market value.

The Commissioner decided that the reg made by the S of S was ultra vires: he had powers under the Act to make regulations as to how capital was to be valued, but he wasn't allowed to make provisions which had no basis in reality. A claimant in this position would be unlikely to find a buyer for a share of a property occupied by a joint owner with secure possession of their own share; so the real value of the claimant's was not tens of thousands of pounds, but nominal or even nil. So the amended reg fell and the prior wording of the reg stood as law.

As a footnote, the Government should have put something in the Act of Parliament if they wanted to pull stunts of this kind. Back in an age when Parliament was more compliant, the Supplementary Benefit Act, introducing Income Support's predecessor, had two provisions in Schedule 2 thereof:

Para 4(1)(a): Notwithstanding anything else we've said so far in this Act, we can give you a bit extra if we think you deserve it ("I like your face").

Para 4(1)(b): Notwithstanding anything else we've said so far in this Act, we can give you less money if we think you don't deserve it ("I don't like your face").

Because these were written into an Act of Parliament, the old DSS (DHSS originally) could do practically what it liked! Who else remembers the Good Old Days?

Jim

Ultra vires ("beyond powers"), is a fairly complex and far reaching principle. A useful guide to the English law is is in Administrative Law by PP Craig (Thomson - Sweet & Maxwell 2003 - well worth the £30).

Ultra vires arguments can be used in a variety of situations - eg if a LA recover overpaid HB, have the officers been given delegated powers by the Council to recover overpayments? Has a benefit decision actually been made by a Decision Maker or by someone who mistakenly thinks they are? If a public body does something, is it within the extent of their powers - for example, a local authority with only housing powers can't provide social services (an issue which can crop up around supported housing - however, Section 2 Local Government Act 2000 which gives broad powers to a LA can be the "Get Out of Jail Card").

It may also be relevant when (eg) HB services have been outsourced as certain delegated powers may not be further delegated by the LA unless legislation allows this ("Delagatus non potest delegare" - an agent can't delegate his authority). On this basis, I also question the ability of local authorities to lawfully delegate decisions or functions on local authority charges to DWP staff who have been recruited into joint teams.

And then there's its application through cases like Howker. It may also be possible to strike down actual Regulations if these go beyond the scope of the Regulation making powers in primary legislation (eg an Act giving power to make Regulations about incapacity for work, could not be used to make Regulations about Jobseeker's Allowance) or in the capital valuation example given by Jim above.

My understanding is that a decision to not pay benefit (eg) because of the colour of someone's hair would be challengeable on the basis of misinterpretation of the legislation rather than being an ultra vires decision, though the boundaries of ultra vires arguments are unclear given its origins as a concept in caselaw.

So it's probably one those subjects which is worth having a good general knowledge about as an advice worker because if the normal statutory interpretation arguments don't work, ultra vires (and other public law arguments) may be helpful - either at Tribunal or in Judicial Review, whichever is appropriate.

Sorry, bit of a rambling post, but it's an interesting and useful subject.

Thanks Guys!
Your messasges have been really useful and I think I understand a bit more now!
Regards
Meg.