equal pay cases and CJSA/475/2009

if correct, and applied to other means-tested benefits, with the most likely being HB and CTB, CJSA/475/2009 means that the lowest paid local authority and health authority employees might not actually benefit from an equal pay settlement or award. As equal pay claims are contract-based claims rather than claims for a statutory tort, this seems a surprising result.  Is it being challenged?  Any other cases in the pipeline? Is the use of reg 92(2)(b) here (which achieves the no benefit effect) correct only because the claimant did not prove the actual period? As a contract-based claim, the period in respect of which any equal pay settlement or award is made will always be ascertainable - has anyone done the comparative maths if attributed according to reg 92 (2)(a)?

There are more authorities on equal pay / single status cases and, at least as far as I can see, some degree of contradiction.

On the facts of the case, it was found in CH/3829/2008 that retrospective payments counted as capital on the basis that monies paid by the clmt’s employer (a LA) were by way of settlement in respect of legal action; not derived from employment.

However, on the face of it, this *appears* to be inconsistent with HB/CTB legislation and the LA was intending to challenge the the decision (I don’t know if this is still being actively pursued).

Although the legislation has long since moved on, compensation was found to be “earnings” in R(SB) 21/86.

As an aside, if it is ultimately determined that such monies count as earnings for benefit purposes, would it count as an error by the employer (potentially an “official error” if DWP or LA)?  In the case of LAs, CDs/UTDs are now tending towards looking at the function(s) of the section / dept making the error.  For example, in CH/3826/2008 Dep Judge Mark considered that where a LA makes a mistake in its capacity as an employer, or pension provider, it is NOT an error for the purposes of the HB/CTB o/p regs.

CH/3826/2008:  http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2687
CH/3829/2008:  http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2798
R(SB) 21/86:  http://www.rightsnet.org.uk/pdfs/rsb/21_86.pdf

Also see other thread:
http://www.rightsnet.org.uk/forums/viewthread/225

CH/2270/2009 - 2010 UKUT 234 AAC -has now been issued.
http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=3003

Update..

Leave to appeal has been granted in both CJSA/0475/2009 & CH/2270/2009 - “Potter” and “Minter” respectively.  Current indications are for the Court of Appeal to hear these sometime in July.