Incapacity Benefit and the Personal Capability Assessment: the current position in Northern Ireland

Barry McVeigh, specialist support officer at Citizens Advice, analyses a recent Commissioners decision which confirms that the test for incapacity in Northern Ireland is now effectively different and more stringent than is the case in Britain.

In November 2002, the Court of Appeal in England ruled in the case Howker v Secretary of State for Work and Pensions and the Social Security Advisory Committee{footnote}Howker v Secretary of State for Work and Pensions and the Social Security Advisory Committee [2002] EWCA Civ 1623.{/footnote} (Howker) that an amendment made in 1997 to the rules concerning entitlement to Incapacity Benefit was invalid and of no effect.

The Court of Appeal in Howker concentrated on the procedures the Department for Work and Pensions (DWP) should have followed when making changes to existing legislation. Any substantial changes have to be referred to the Social Security Advisory Committee (SSAC) for consultation and the DWP must confirm the likely effect this will have on its customers. The court held that officials acting on behalf of the (then) Secretary of State for Social Security misled the SSAC into thinking that no-one would lose out from the changes to Regulation 27 of the Incapacity for Work Regulations. In fact, the changes had been designed to restrict benefit entitlement. The changes to Regulation 27 were held to be ultra-vires.

Following the Howker decision, which dealt only with the changes to Regulation 27 of the Incapacity for Work Regulations, a number of Social Security Commissioners in GB have examined other changes introduced by the 1997 amendments. The Commissioners are split in their interpretation and guidance on this matter. Some Commissioners have decided that the changes to certain descriptors introduced in 1997 were ultravires and should revert back to the pre 1997 version while others have decided that the other 1997 changes were properly made. Some of the main changes made in 1997 were as follows.

Physical disabilities

Activity 3 Sitting in an upright chair with a back but no arms was changed from ‘cannot sit comfortably for X minutes without having to move from the chair’ to ‘cannot sit comfortably for X minutes without having to move from the chair because the degree of discomfort makes it impossible to continue sitting’.

Activity 6 Bending and kneeling. 6(b) and (c) were changed so that ‘cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again’ became ‘cannot either bend or kneel or bend and kneel as if to pick up a piece of paper from the floor and straighten up again’.

Activity 8 Lifting and carrying was changed from ‘lifting and carrying’ to ‘lifting and carrying by the use of upper body and arms (excluding all other activities specified in Part I of this Schedule)’.

Activity 13 ‘Continence’ was changed to ‘continence (other than enuresis - bed wetting)’.

Activity 14 ‘Remaining conscious other than for normal periods of sleep’ was changed to ‘remaining conscious without having epileptic or similar seizures during waking moments’.

Regulation 25 para 2, had the text in italics added: ‘in determining the extent of a person’s incapacity to perform any activity listed in Part 1 he shall be assessed as if he were wearing any prosthesis with which he is fitted or, as the case may be, any aid or appliance which he normally wears or uses’.

Mental disabilities

Descriptor 15c had the words ‘or television’ added so that it now reads ‘cannot concentrate to read a magazine article or follow a radio or television programme’.

Descriptor 15g had the words ‘potentially dangerous’ added so that it now reads ‘agitation, confusion or forgetfulness has resulted in potentially dangerous mishaps or accidents in the three months before the day in respect of which it falls to be determined whether he is incapable of work for the purposes of entitlement to any benefit, allowance or advantage’.

The position in Northern Ireland

A Tribunal of Commissioners in Northern Ireland recently heard a case{footnote}C13/03-04(IB)(T){/footnote} taken by CAB concerning the applicability of Howker in Northern Ireland. Due to the complexities of the case, the Department instructed a Departmental Solicitor and a QC to present the case. CAB solicitors, Elliot Duffy Garrett, and Odhran Stockman, Barrister at Law, agreed to represent the CAB on a pro-bono basis as the client was not eligible for legal aid.

The Tribunal of Commissioners examined the Howker case in detail and found that the procedure for referring proposed changes in legislation to the Social Security Advisory Committee in GB was different to the process to be followed in Northern Ireland. In particular, they cited paragraph 10 of Schedule 5 to the Social Security Administration Northern Ireland Act 1992. This provides that regulations do not require prior submission to the SSAC where they make ‘only provision corresponding to provision contained in regulations made by the Secretary of State or the Lord Chancellor in relation to Great Britain.’ The Tribunal of Commissioners maintain that ‘… 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. … 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.

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.’

Although Northern Ireland is a separate jurisdiction, almost all social security legislation is based on the identically worded GB equivalent. This is known as corresponding legislation. Where corresponding legislation is made in Northern Ireland, there is no requirement to refer this to the Social Security Advisory Committee. The Commissioners decided that the Howker judgement did not apply in Northern Ireland and as a result the 1997 amendments were properly made and still apply until such times as they are amended. The Commissioners rejected an argument that where corresponding legislation is based on GB legislation, which is later found by the courts to be ulta vires, then the corresponding legislation has no foundation. Human rights arguments that Incapacity Benefit customers in GB were potentially better off than customers in Northern Ireland, in what was intended by government to be an identical system, were also rejected.

In February 2005, the Department introduced a statutory rule{footnote}Social Security (Incapacity for Work) (General) (Amendment) Regulations (Northern Ireland) 2005 (SI.No.15/2005).{/footnote} in Northern Ireland which amended regulation 27 of the Incapacity for Work Regulations so that it now corresponds with the GB equivalent and reverts back to the pre 1997 wording. However, the Department does not intend to amend any other descriptors which changed as a result of the 1997 amendments. This effectively means that the test for incapacity in GB is now different to the test in NI, and subject to decisions by GB commissioners on the legality of the remaining changes introduced in 1997, may result in further differences between the two systems.