CU 142 1989
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 11 April 1990 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CU 142 1989 |
| Subject Matter | Claims and payments |
R(U) 1/91
Mr. V. G. H. Hallett, Mrs. R. F. M. Heggs CU/142/1989
and Mr. J. J. Skinner
11.4.90
Occupational pension - claimant in receipt of both unemployment benefit and occupational pension before abatement provisions came into force - whether claimant had “acquired” or “accrued” right to unemployment benefit without abatement
The claimant, a retired teacher aged 56, was in receipt of two occupational pensions, when, on 7 November 1988, she claimed unemployment benefit. On 1 January 1989 an amendment to section 5 of the Social Security (No. 2) Act 1980 lowered the age at which the occupational pension provisions were to apply from 60 years to 55 years. The adjudication officer decided that the claimant’s unemployment benefit was abated by the amount of the occupational pensions she was receiving. An appeal tribunal accepted that section 16(1)(c) of the Interpretation Act 1978 assisted the claimant and prevented the new legislation from affecting her previously acquired right to payment of benefit. The adjudication officer was granted leave to appeal to the Commissioner
In allowing the appeal, the tribunal of Commissioners held that
1. the claimant had not accrued a right to unemployment benefit because that benefit is a daily benefit and the event (a day of unemployment) which gives rise to such a right had not occurred when the amending legislation came into force (para. 15)
2. when the event did occur, after 1 January 1989, the amended Act provided for abatement of benefit (para. 15);
3. section 165A provides that no person is to be entitled to any benefit unless he makes a claim for it. A person who has not become entitled to any benefit, cannot be said to have acquired a right to that benefit (para. 16);
4. the claim for the days in question was made on 10 January 1989 and accordingly there was no “right” before that date which could be preserved by section 16(1)(c) of the Interpretation Act 1978 (para. 16).
DECISION OF THE TRIBUNAL OF COMMISSIONERS
1. We allow the adjudication officer’s appeal against the decision of the social security appeal tribunal and as that decision is erroneous in law we set it aside. We give the decision which the tribunal should have given namely, that unemployment benefit is not payable to the claimant from 2 January 1989 to 10 January 1989 (both dates included) because she had attained the age of 55 years and was in receipt of occupational pension which in the aggregate exceeded the prescribed amount of £35.00 per week by at least £70.00, consequently her entitlement must be reduced to nil by virtue of the provisions of section 5 of the Social Security (No. 2) Act 1980 as amended. If any further claim for unemployment benefit is made in respect of a day falling in the period 11 January 1989 to 11 January 1990 (both dates included) and on that day the grounds of this decision have not ceased to exist, this decision is to be treated as a disallowance of that claim.
2. The Chief Commissioner directed that this appeal be heard by a tribunal of Commissioners and it was the subject of an oral hearing before us on 8 March 1990. Mr. M. R. Parke of the Solicitor’s Office of the Departments of Health and Social Security represented the adjudication officer and Mr. Richard Drabble of Counsel, instructed by Sinclair Taylor and Martin Solicitors, appeared for the claimant.
3. This is an adjudication officer’s appeal against the decision of the Norwich social security appeal tribunal given on 2 October 1989 which decided that the claimant was not disentitled to unemployment benefit from 2 January 1989 by reason of receipt of an occupational pension. In doing so the tribunal reversed a decision of the adjudication officer issued on 11 January 1989 which disallowed unemployment benefit from 2 January 1989 to 10 January 1989 (both dates included) on the grounds that the claimant had attained the age of 55 years and was in receipt of payment by way of occupational pension which in the aggregate exceeded the prescribed amount of £35 per week by at least £70. The adjudication officer had, also, made a forward disallowance covering the inclusive period 11 January 1989 to 11 January 1990.
4. The claimant, a retired teacher, became entitled from and including 1 September 1988 to two occupational pensions payable monthly. These pensions were payable at the monthly rate of £322.10 and £133.20. She claimed unemployment benefit from 7 November 1988 and at that date she was aged 56 years. The days 7 November 1988, 8 November 1988 and 9 November 1988 were treated as waiting days pursuant to section 14(3) of the Social Security Act 1975 and unemployment benefit was paid at the weekly rate of £32.75 from 10 November 1988 to 31 December 1988. On 11 January 1989 the adjudication officer made the decision to which we have referred earlier. The particulars of the claim, upon which the adjudication officer’s decision was founded, were not before the tribunal; nor were they informed whether the decision was a review decision or not. In response to a direction evidence was put before us which shows that the claim was made on 10 January 1989. It claimed unemployment benefit in the period from 28 December 1988 to 10 January 1989. Again in response to the direction evidence was put before us that the decision of the adjudication officer given on 11 January 1989 was an initial decision and not a decision on review. These are the facts and there is no dispute about them.
5. Neither is it in dispute that the claimant’s occupational pensions are occupational pensions within section 5(3) of the Social Security (No. 2) Act 1980. It is also not in dispute that if these occupational pension payments fall to be taken into account for the purpose of abatement, with effect from 1 January 1989, the amount of such pensions is sufficiently large to extinguish any entitlement to unemployment benefit. The issue which falls for decision by us is whether the amendment to section 5 of the Social Security (No. 2) Act 1980, made by section 7 of the Social Security Act 1988, which came into operation on 1 January 1989 and which lowered the age at which the occupational pension provisions were to apply from 60 years to 55 years, affected the claimant’s entitlement to unemployment benefit. The issue turns on whether or not the provisions of section 16(1)(c) of the Interpretation Act 1978 protects the claimant. The tribunal below decided that it did.
6. It is necessary to read section 16(1)(c) of the Interpretation Act 1978 which, in so far as relevant, we set out below:
“16(1) Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,‑
(a) ....
(b) ....
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment:”
The sub-section is a virtual repetition of section 38(2) of the Interpretation Act 1889 and the decisions of the courts on that section are of use.
7. In order to answer the question whether a right had been acquired by or had accrued to the claimant it is necessary to look at the statutory provisions relating to unemployment benefit and these we have set out in an appendix to this decision.
8. The tribunal decided that the claimant had established a right to unemployment benefit because she had been receiving unemployment benefit for nearly two months when the amendment to section 5(3) of the Social Security (No. 2) Act 1980, made by section 7 of the Social Security Act 1988, came into force. It was therefore, in their view, a right which was already acquired for the purposes of section 16(1)(c) of the Interpretation Act 1978. The tribunal also held that no contrary intention appeared in the amending enactment. They found that section 16 of the Interpretation Act applied to the claimant and that she was not deprived of unemployment benefit by virtue of the amending Act of 1988.
9. Mr. Parke argues that unemployment benefit is a daily benefit which accrues on a daily basis and must be claimed on a continuing daily basis. He says that a right only arises, assuming a claim is made, once there has come into existence a day which properly may be treated as a day of unemployment. Anticipating Mr. Drabble's argument, he says that a claimant does not claim for 312 days. He contends that the statutory provisions place an emphasis on daily benefit and that the 312 days specified in section 18 of the Social Security Act 1975 relates back to the past and not forward. He contends that the Act is not drafted on the basis of a right which will continue for 312 days, but on the basis of a daily benefit. In support of his argument he has taken us through the provisions of section 14(1)(a), section 14(8), section...
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