My client was the appellant in decision CIB/4497/2002 - reported in Journal of WB Law, not sure if written up elsewhere. She was in work past 60, and had a stroke. She claimed ICB (as it would have been more than her reduced rate Cat A RP) and was refused as she was over 60. Ian Miller of Hull WR took the case to appeal, arguing breach of the EU directive on equal treatment. The tribunal inevitably dismissed the appeal, and Ian and I then put in an appeal to the Commissioners.

Commissioner Rowland granted leave, and directed an oral hearing. We then got exceptional legal aid funding under s.6 Access to Justice Act, and instructed Sally Robertson. The other side had a QC.

The argument turns on the two cases of Thomas & Graham. What actually defeated my client was the fact that she had not actually paid NI post 60 (as she was prevented from doing so) and the Commissioner did not think he had jurisdiction to deem her to have paid, or otherwise rule on the NI issues. He stayed the appeal to give us time to decide what to do - potentially mount a JR against the IR to allow her to pay the NI. In the end it was not going to be financially worth it for her, and legal aid would not have been extended to cover this. Therefore the Commissioner dismissed the appeal, on the narrow ground that she did not meet the NI conditions.

By not ruling on the discrimination point he left it open for someone else, for whom it would be worth more, to try again. It really needs a woman aged 60/61 with reduced or no RP entitlement.

Anyone interested?

Simon Ennals