Secretary of State for Work and Pensions CP 3638 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 10 June 2009 |
| Appellant | Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Residence and presence conditions |
| Docket Number | CP 3638 2006 |
| Respondent | Yates |
R(P) 3/09
(Secretary of State for Work and Pensions v Yates [2009] EWCA Civ 479)
|
Mr J Mesher Commissioner 1 July 2008
CA (Lord Clarke MR, Rix and Carnwath LJJ) 10 June 2009 |
CP/3638/2006 |
Retirement pension – Category B pension frozen at level in force when spouse ceased to live in Great Britain – higher Category B pension payable on death of spouse – whether should include increases in benefit rates up to date of his death
The claimant’s late husband went to live in Canada in 1976 and his category A retirement pension and graduated retirement benefit (GRB) were frozen at the November 1975 rate in accordance with the provisions of regulations 4 and 5 of the Social Security (Persons Abroad) Regulations 1975 (the Persons Abroad Regulations). Those provisions create exceptions to the general disqualification when absent from Great Britain in section 113 of the Social Security Contributions and Benefits Act 1992 in relation to, inter alia, retirement pension and GRB but (by regulation 5(3)) retain the disqualification for increases in the rate of benefit. The claimant married her husband in September 2001. She was a Canadian citizen and had never lived in the United Kingdom. She was then awarded a Category B retirement pension as his spouse, based on his contributions, also frozen at the 1975 rate under regulation 5(3)(aa). Her husband died on 27 May 2002 and she was then awarded a higher weekly rate of Category B pension in her own right, together with the equivalent of half his GRB, based on November 1975 rates. The claimant appealed to the appeal tribunal, arguing discrimination under Article 14 of the European Convention on Human Rights. The same point was under consideration in R (Carson) v Secretary of State for Work and Pensions), which was decided by the House of Lords in favour of the Secretary of State in May 2005 ([2005] UKHL 37, [2006] 1 AC 173). The tribunal dismissed her appeal and she appealed to the Commissioner. The Commissioner allowed her appeal, basing his reasoning purely on the construction of regulation 5 of the Persons Abroad Regulations and holding that she was disqualified only in respect of any up-rating order since she first became entitled to a pension in her own right, as the provisions of the Persons Abroad Regulations must be considered week by week, and from 27 May 2002 the claimant ceased to fall within regulation 5(3)(aa) relating to married women, and (b) (relating to widows and widowers) did not apply to past up-rating orders. Therefore, the disqualification from up-rating had to be considered under (c) as from that date. The Secretary of State appealed to the Court of Appeal, arguing that, once the extent of disqualification was decided in relation to each up-rating order, the position was then fixed in relation to that up-rating order, even though the benefit is calculated and paid on a weekly basis
Held, allowing the appeal, that
- while the Commissioner’s interpretation had force on a strict reading of the wording of the regulation, there was a strong incentive to read any ambiguity in the regulations so as to accord with the evident policy intention in section 113 to deprive those absent from the country from any entitlement to the benefits covered, but to restore it only to the extent that Regulations provided (paragraph 37);
- the insertion of sub-paragraph (aa) into regulation 5(3) to deal with a particular problem, without sufficient regard to its relationship to the paragraph as a whole should not be allowed to disrupt the scheme of the paragraph, which is that disqualification from the benefit of up-rating is generally treated as applying for the whole of the period of the order, based on the position at the appointed date and in this context the ordinary “week by week” approach is displaced (paragraph 38);
- therefore sub-paragraph (aa) provided the means of establishing the claimant’s status under the current and previous up-rating orders and there was no reason to revisit the basis of her disqualification under the Persons Abroad Regulations (paragraph 39 and 40).
The Court of Appeal remitted the case to the Upper Tribunal so that the matter could be reviewed in the light of the final decision of the European Court of Human Rights in Carson.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The claimant’s appeal to the Commissioner is allowed in part.
(a) The decision of the Sutton appeal tribunal dated 19 April 2006 disallowing the appeal against the Secretary of State’s decision dated 22 April 2002, relating to the period from 8 September 2001 to 26 May 2002, is not erroneous in point of law, for the reasons given below, and therefore stands.
(b) The decision of the same appeal tribunal disallowing the appeal against the Secretary of State's decision dated 28 June 2002 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to give the decision that the appeal tribunal should have made on that appeal on the basis that the construction of the British legislation is not affected by the application of the Human Rights Act 1998 or the principles of European Community law (Social Security Act 1998, section 14(8)(a)(i)). That decision is set out in paragraph 2 below.
- My decision under paragraph 1(b) is that the appeal against the decision of 28 June 2002 is allowed and that the substituted decision is that the claimant is entitled to a category B retirement pension from and including 27 May 2002 at the basic rate identified in sections 48A(4) and 44(4) of the Social Security Contributions and Benefits Act 1992 as at 8 September 2001 (£72.50), plus inherited graduated retirement benefit at the weekly rate calculated in accordance with paragraph 35 below. If the mechanics of the calculation are not agreed on behalf of the claimant’s estate, the case may be referred back to me (or, if necessary or expedient, to another Commissioner) for further decision.
Introduction
- This is a complicated and unusual case, involving highly technical provisions on the circumstances in which a recipient of a category B retirement pension resident in Canada can take advantage of up-rating orders of which her deceased husband, through whose contributions she qualified for the pension, had not been able to take advantage in the calculation of his own retirement pension and of which she had not been able to take advantage during his life. The claimant sadly died on 8 January 2008. Her appeal to the Commissioner is being carried on by Ms W as one of the executors under her will (as is proper in accordance with paragraph 4 of Commissioner’s decision R(SB) 8/88 although evidence has not yet been provided of grant of probate in British Columbia). Ms W has authorised the claimant’s late husband’s son to represent her, as he had been representing the claimant. I refer to him below as the claimant’s representative. Because my view of the case took me into questions that had not been raised in the already massive written submissions and because of the practical difficulties of arranging any sort of oral hearing, I issued a draft decision on 10 January 2008 and invited the parties’ comments. The claimant’s representative in a letter dated 31 January 2008 agreed entirely with my draft decision and indicated that if that decision were maintained (as it has been except to a very small extent) he no longer wished to pursue any human rights or European Community law arguments. There is therefore no need to issue this decision as merely an interim decision, pending further such argument. It is a final decision. The Secretary of State’s response, after two grants of extension of time, was dated 19 May 2008. I have taken account of it below, although it has not caused me to alter my view on the main issues of law
- At the hearing before the appeal tribunal in January 2003 the argument proceeded on the basis that the claimant’s representative could not dispute the two decisions under appeal within the terms of the British social security legislation. His arguments were that certain provisions of the secondary legislation were inapplicable because they were discriminatory contrary to Article 14 of the European Convention on Human Rights or were inconsistent with European Community law. At that time an appeal against Stanley Burnton J’s first instance judgment in R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin), [2002] 3 All ER 994, in which he rejected a human rights challenge to the difference of treatment between pensioners resident in countries with which the United Kingdom had a...
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