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Mr Howker had been suffering from heart trouble with high blood pressure and general circulation problems. He was accepted as having become incapable of work under the old regulation 27(b) of Social Security (Incapacity for Work) (General) Regulations 1995:
"he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work."
Regulation 27 was amended, removing 27(b), with the result that Mr Howker was taken off incapacity benefit when his award was reviewed. He appealed and was unsuccessful. He subsequently appealed to the commissioners (CIB/4563/1998 now reported as R(IB)3/03).
The appeal did not succeed but Commissioner Howell noted that there had been "a piece of extremely sharp practice" when the DSS, now Department for Work and Pensions, submitted regulation 27 amendments to the Social Security Advisory Committee (SSAC) for consideration. The DSS, deliberately underemphasised the effects of the proposed change in legislation, by stating that these changes were "neutral in effect", so the SSAC was persuaded not to advise on them.
Mr Howker's case went to the court of appeal which stated:
"Where, as in the present case, the Secretary of State through his officials has misled the Committee by information which is obviously incorrect if comparison is made between the old Reg. 27 and the new Reg. 27, and thereby procured the Committee's agreement to no reference, and where, as the Commissioner has found, the provision of the correct information would have led to a reference (or the withdrawal of the new Reg. 27), and the Secretary of State proceeds to make the new Reg. 27, it is manifest, to my mind, that the procedure intended by Parliament for the making of regulations has not been observed. "
It was found that regulation 27 was "ultra vires" (beyond ones powers of authority and therefore unlawful). Regulation 27(b) has now been restored, though other parts of the amended regulation have been allowed to stand. The change takes effect from 8th November 2002.
Following this decision the SSAC was asked by the Secretary of State for Work and Pensions to consider proposals for regulations, to amend regulation 27 back to the 1997 amendment. The full report with its recommendations was published in March 2005. These recommendations were summarised in an accompanying statement by the Parliamentary Under Secretary of State for Work and Pensions.
"In May 2003 the Committee recommended that no change be made for the present but that the Government should monitor the situation. It considered that it had seen no evidence of any inappropriate broadening of the criteria leading to benefits being paid in “undeserving” cases. It sees the current regulation 27(b) in its reinstated form as crucial to ensuring that income to a number of vulnerable and disadvantaged customers is not disrupted and their lives destabilised. The Committee also considers that the current provisions provide a necessary safety net for people who do not get a correct personal capability assessment."
Although the government has decided that there will be no amending regulation for the time being the door is left open for future amendments to regulation 27.
"The Government has decided to withdraw the proposal at the present time. The Government intends to gather more information about the operation of the “substantial risk” provision in practice before deciding whether or not further proposals are warranted."
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