GM v Secretary of State for Work and Pensions (RP)

JurisdictionUK Non-devolved
JudgeJudge Wikeley
Neutral Citation[2022] UKUT 85 (AAC)
Subject MatterHuman rights law - article 14 (non-discrimination),Retirement pensions - increases for spouse or dependant,Retirement pensions - other,Wikeley,N
CourtUpper Tribunal (Administrative Appeals Chamber)
Published date05 April 2022
G.M. -v- SSWP (RP)
[2022] UKUT 85 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. UA-2021-001262-RP
ADMINISTRATIVE APPEALS CHAMBER (formerly CP/317/2021)
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Between: Mrs G. M. Appellant
- v
Secretary of State for Work and Pensions Respondent
Before: Upper Tribunal Judge Wikeley
Hearing date: 22 February 2022
Decision date: 23 March 2022
Representation:
Appellant: Mr H. Mercer QC and Ms J. Russell, acting pro bono
Respondent: Mr J. Mitford QC and Ms N. Ling, instructed by the Government
Legal Department
DECISION
The decision of the Upper Tribunal is to dismiss the appeal. The decision of the
First-tier Tribunal made on 27 May 2020 under file number SC180/18/00215 does
not involve any error of law (section 11 of the Tribunals, Courts and Enforcement
Act 2007). The decision of the First-tier Tribunal accordingly stands.
G.M. -v- SSWP (RP) [2022] UKUT 85 (AAC) Case no: UA-2021-001262-RP
2
REASONS FOR DECISION
The outcome of this appeal to the Upper Tribunal
1. The Appellant’s appeal to the Upper Tribunal is dismissed.
2. This decision follows a conventional oral hearing held on 22 February 2022. Mr
Hugh Mercer QC and Ms Jane Russell of Counsel appeared for the Appellant
(the claimant). Mr Julian Milford QC and Ms Naomi Ling of Counsel appeared for
the Respondent (the Secretary of State). I am grateful to all counsel for their
careful written and oral submissions. I am especially indebted to those acting pro
bono. I am also grateful to all those who have worked behind the scenes to enable
this appeal to be brought on for hearing in what is, for the Upper Tribunal at least,
a relatively short time.
The legal issue at the heart of this appeal
3. The issue at the heart of this appeal is how the law treats two groups of women
in terms of their access to Category B state retirement pensions. For
convenience, the two groups have been described in shorthand by the parties in
this case as the Pre-2008 Married Women” and the “Post-2008 Married Women”.
However, those labels, while convenient, are potentially misleading, as the date
of marriage is not the real point of distinction.
4. The Pre-2008 Married Women are women who (a) retired before their husband;
(b) are in receipt of their own Category A retirement pension; and (c) whose
husbands received their Category A retirement pension before 17 March 2008.
5. The Post-2008 Married Women are women who (a) retired before their husband;
(b) are in receipt of their own Category A retirement pension; and (c) whose
husbands received their Category A retirement pension on or after 17 March
2008.
6. It will be evident that the only point of distinction between the two groups of
women is criterion (c). Not for the first time, a woman’s status is thereby defined
by reference to some characteristic of her husband, in this instance being the
date he first received his Category A retirement pension. The significance of 17
March 2008 is that this was the date that the Social Security (Claims and
Payments) Amendment Regulations 2008 (SI 2008/441) came into force,
amending the Social Security (Claims and Payments) Regulations 1987 (SI
1987/1968) (‘the 1987 Regulations’). For convenience in this decision I describe
the amendment of 17 March 2008 as the 2008 amendment.
7. How then are the two groups of women treated differently? In short, the Pre-2008
Married Women, if they wish to claim a Category B retirement pension, based on
their husband’s contributions, to top up their own Category A pension, have to
(and have always had to) make a claim for that Category B pension. The Post-
2008 Married Women do not need to make a claim for the latter benefit the
husband’s own post-2008 Category A pension claim will itself trigger an award of
the wife’s Category B pension where appropriate.
An outline of the facts of this case and the Appellant’s grounds of appeal
8. The facts of this case vividly illustrate what these rules can mean. I recognise that
although in theory this case concerns only one elderly lady, in practice it affects
G.M. -v- SSWP (RP) [2022] UKUT 85 (AAC) Case no: UA-2021-001262-RP
3
tens of thousands of other married women in the same position (see paragraph
129 below).
9. The Appellant herself was born in 1938 and so reached the then state pension
age for a woman (60) in 1998. She applied for and received her own Category A
pension from her 60th birthday in January 1998. In common with many other
married women, this was paid at a reduced rate as she did not have a full national
insurance record. The Appellant’s husband was born in 1935 and so he attained
the then state pension age for a man (65) in 2000. He claimed and received his
Category A pension from his 65th birthday in August 2000, a little over 18 months
after the Appellant.
10. It is not in dispute that in August 2000 the Appellant qualified for receipt of a
Category B pension, based on her husband’s national insurance record, to top
up her Category A pension, subject to one condition. That one condition was that
she was required to make a claim for the Category B pension. She did not make
such a claim at the time or indeed for quite some time thereafter. She is,
accordingly, one of the cohort of Pre-2008 Married Women.
11. Indeed, the Appellant did not make a claim for a Category B pension until
December 2017. In that same month she was awarded a Category B pension,
backdated 12 months to 19 December 2016. The one year backdating was the
maximum period allowable under regulation 19 of, and paragraph 13 of Schedule
4 to, the 1987 Regulations.
12. The Appellant has two grounds of appeal before the Upper Tribunal: a statutory
construction point and a human rights argument. On the statutory construction
ground, she contends that her entitlement to a Category B pension should be
backdated to 17 March 2008 (being the date from which the need to make a
separate claim was removed for Post-2008 Married Women by virtue of the 2008
amendment). On the human rights ground, she argues that her entitlement to a
Category B pension should be backdated to 8 August 2000 (the date her husband
qualified for his Category A pension).
The legislative framework for entitlement to state retirement pensions
13. As a result of the Pensions Act 2014, a new’ state pension scheme has been in
operation for people retiring on or after 6 April 2016. However, this case is
concerned with the ‘old’ Beveridge-based system of state retirement pensions
that has been in place since 1948 (as frequently amended).
14. Sections 43-55C of the Social Security Contributions and Benefits Act (SSCBA)
1992 make extensive provision for Category A and Category B retirement
pensions under the old system. In particular, section 44 provides that a Category
A pension is payable based on the claimant’s own national insurance record.
There are various circumstances in which a Category B pension is payable. For
present purposes the relevant provision is section 48A of SSCBA 1992, which
goes under the heading ‘Category B retirement pension for married person or
civil partner’. The Department refers to this category of retirement pension as a
Category BL pension, to distinguish it from other types of Category B pension
(e.g. for widows and widowers). However, the terminology of Category BL is not
known to the statute book, so in this decision the label of Category B is used
(unless the term Category BL is used in the original text of a quote).

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