CPC 3396 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. A. L. Bano |
| Judgment Date | 03 April 2008 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CPC 3396 2006 |
| Subject Matter | Income support and state pension credit |
R(PC) 1/08
|
Mr E A L Bano Commissioner 3 April 2008 |
CPC/3396/2006 |
Human rights – whether failure to make regulations allowing backdating of award of state pension credit to successful asylum-seeker in breach of Article 14 of European Convention on Human Rights read with Article 1 of Protocol 1
The claimant applied for asylum and in due course was notified that she had been recorded as a refugee. On 10 January 2006 she claimed state pension credit and applied for any award of income support or state pension credit to be backdated to the date of her asylum claim. Because she made her claim within 28 days of the notification that she had been recorded as a refugee, the claimant would have been entitled under regulation 21ZB of the Income Support (General) Regulations 1987 to benefit backdated to the date of her asylum claim if her claim had been for income support. However she was advised that there was no provision similar to regulation 21ZB relating to state pension credit, and she was awarded state pension credit only from 12 January 2006. The claimant appealed against the refusal to backdate the award to the date of her asylum application. A tribunal dismissed her appeal and she appealed to the Commissioner, relying on the argument that the failure to make regulations allowing backdating of an award of state pension credit to a successful asylum-seeker was in breach of Article 14 of the European Convention on Human Rights read with Article 1 Protocol 1. It was not disputed that discrimination on age grounds fell within Article 14. It was submitted on behalf of the claimant that entitlement to state pension credit fell within the ambit of Article 1 Protocol 1 as a possession, on the ground either that contributory and non-contributory benefits are both within the scope of Article 1 of Protocol 1, following the admissibility decision in Stec v United Kingdom (application nos 67531/01 and 65900/01) in preference to Carson and Reynolds v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173 and other domestic authorities, or alternatively that the savings credit element in state pension credit makes it similar to a contributory benefit. The Commissioner was invited to interpret regulation 21ZB of the Income Support (General) Regulations 1987 as applying to state pension credit
Held, dismissing the appeal, that:
1. the savings credit element in state pension credit is payable to pensioners who have private pensions or similar income resulting from their own savings, and was therefore not analogous to benefit entitlement which is dependant on contributions (paragraph 9);
2. following Kay v Lambeth LBC, Leeds CC v Price [2006] UKHL 10, [2006] 2 AC 465, the question whether state pension credit, as a non-contributory benefit, fell within the ambit of Article 1 Protocol 1 fell to be decided under the ordinary domestic rules of precedent, unless the case fell within the rare category of exceptions, and the fact that the House of Lords in Carson and Reynolds had expressly left open the question of whether non-contributory benefits fell within the ambit of Article 1 Protocol 1 pending the decision in Stec did not justify departing from the domestic authorities, including that of Couronne v Crawley Borough Council [2006] EWHC 1514 (Admin), where Stec was expressly not followed (paragraph 9);
3. however, even if Stec were followed, there was no effective remedy which the Commissioner could give the claimant, since section 123 of the Immigration and Asylum Act 1999 Act expressly provided for the regulation-making power which it created to be exercised in relation to state pension credit by regulations made under the State Pension Credit Act 2002, and it was therefore not possible to interpret the section as also empowering the Income Support...
To continue reading
Request your trial