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  • #23133

    I’ve just read and re-read this case.

    It appears to be saying that the anti test case provisions apply to claims made after (in this case) a commissioner’s decision but not to any appeals made – in which case the new law would apply.

    Does anyone else read this the same way or am I just being dull?




    I read it as saying that in an appeal against a decision made before the “relevant determination” the Tribunal should take on board the effect of the “relevant determination” because there is nothing in para 18 to say that it shouldn’t and the doctrine of precedent otherwise dictates that it should.

    But if the Council has made a decision after the relevant determination was handed down, and in accordance with para 18 the Council has not applied the relevant determination retrospectively, the Tribunal is constrained in the same way – otherwise, as the Commissioner says, para 18 would be a waste of time because you could simply appeal.

    Kevin D

    An earlier CD also looked at the issue of retrospectivity in applying R(H) 03/05:



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