[2023] UKUT 193 (AAC)

Except on points of minor detail, however, none of the submissions summarised above has persuaded me that the provisional views I expressed when giving permission to appeal were incorrect. As far as the construction of regulation 64 is concerned, I have the misfortune to find myself in disagreement with Mr Powell. I am satisfied that CH/4429/2006 was wronglydecided and I respectfully decline to follow it.

I will therefore begin this discussion by explaining why I have formed that view. I will then explain why I am unable to accept the submissions to the contrary from Gravesham and the Secretary of State.

In adopting that approach, I have not overlooked that Mr Waite did not base his submissions on the authority of CH/4429/2006. However, as that decision would normally be binding on me in comity, it is necessary to explain in detail why I disagree with it.

As I have reached my decision as a matter of the domestic law of Great Britain, it is unnecessary for me to consider whether the regulation would be unlawfully discriminatory if its meaning were as the respondents submit. However, as I also disagree with CH/4429/2006 on this point, and as it is clearly possible that this decision will not be the last word on the matter, I will comment briefly on what I would have decided if I had determined the main issue against the claimant.

I should also say that, although I have considered the 678 pages of authorities that have been cited to me, this discussion will mention very few of them. None are directly in point and—particularly as I regard the appeal as turning on the interpretation of regulation 64, as opposed to the discrimination issues—I have derived little help from them.