Equal pay and Housing Benefit

A legal case raises some interesting questions. Several benefits, including Housing Benefit, supplement the incomes of people living on low wages. Hull had been paying low wages to its female employees, but councils have been rushing to implement the equal pay legislation enacted in the 1970s, and Hull is one of the employers which has seen the light. However, the council reasoned, if their female employees had been paid in the first place, they would not have been entitled to the same benefits. In Kingston upon Hull City Council v DLM (HB) [2010] UKUT 234 (AAC), the council successfully argued that as the back payment of pay was income for a previous period, the benefits should be retrospectively reassessed, and the payment was accordingly reduced.

The decision seems to me flatly wrong. Benefits which are overpaid cannot normally be recovered if there is no fault or error, and the judge explicitly acknowledged there was none. It also seems doubly perverse that it should be possible to cut payments retrospectively while another rule, the ‘anti-test case rule’, denies back-payments for wrongfully determined claims.

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