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Neutral Citation Number:
Reported Number:	R(H)3/06
File Number:	CH 4424 2004
Appellant:
Respondent:
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	01/02/2006
Date Added:	20/02/2006
Main Category:	Housing and council tax benefits
Main Subcategory:	rent restrictions
Secondary Category:	Housing and council tax benefits
Secondary Subcategory:	rent restrictions
Notes:	Maximum housing benefit - old version of regulation 11 Housing Benefit (General) Regulations 1987 - incapacity for work - basis of assessment - by whom to be determined The local authority imposed a restriction on the claimant’s rent under the old version of regulation 11 of the Housing Benefit (General) Regulations 1987, which applied to her case by virtue of savings provisions. By regulation 11(3)(b) the restrictions did not apply to a claimant who is incapable of work for the purposes of one or more of the provisions of the Social Security Act 1975 or Part I of the Social Security and Housing Benefit Act 1982 or Part II of the Social Security Act 1986. Those Acts had been repealed and re-enacted in the Contributions and Benefits Act 1992, and the provisions of that Act relating to incapacity for work were substantially amended in 1995. The claimant appealed against the local authority’s decision that she was not incapable of work. The tribunal found her incapable of work under the test that applied before the amendments. The local authority appealed to a Commissioner. The questions for the Commissioner were (i) whether incapacity for work was to be determined under the present law on incapacity for work or by the law in force when the regulation was enacted and (ii) whether the decision on incapacity for work fell to be made by the housing benefit decision-maker or the Secretary of State. Held, allowing the appeal, that: 1. by virtue of both specific consequential provisions and section 17(2)(a) of the Interpretation Act 1978, the references in regulation 11(3)(b) to the 1975, 1982 and 1986 Acts had to be read as references to the consolidating Contributions and Benefits Act 1992, and when that Act was amended, section 13(1) of the amending Act provided that any reference in any enactment to any provision relating to incapacity for work should be construed as a reference to the corresponding new or amended provision (paragraphs 10 to 13); 2. the effect of those provisions was sufficient for regulation 11(3)(b) to refer as to the future to the new incapacity for work regime (paragraph 14); 3. the claimant’s incapacity for work therefore had to be determined by reference to the new law and not by reference to the law as it was before the 1995 reforms (paragraph 15); 4. by regulation 11 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 the claimant’s incapacity for work had to be determined by the Secretary of State (paragraphs 17 to 19); 5. a housing benefit claimant who is dissatisfied with the Secretary of State’s determination on incapacity will be able to appeal against it as a determination embodied in the housing benefit decision or against any determination on incapacity made in the context of a social security decision, and in either case the tribunal must be constituted, if appropriate, in accordance with regulation 36(2)(a)(i) of the Decisions and Appeals Regulations (paragraph 20). The Commissioner remitted the case to the local authority with directions to refer the issue of the claimant’s capacity for work to the Secretary of State.
Decision(s) to Download:	R(H) 3_06 ws.doc