GM v Secretary of State for Work and Pensions
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] UKUT 85 (AAC) |
| Year | 2022 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2022 Feb 22; March 23
Upper Tribunal Judge
Social security - Contributory retirement pension - Entitlement - Married women in receipt of Category A pension qualifying for Category B state pension payments based on husbands’ national insurance contributions - Entitlement arising on husband claiming own Category A pension - Statutory scheme at first requiring women to make application to receive Category B pension - Amended scheme triggering award of Category B pension automatically on husband applying for Category A pension - Whether automatic entitlement arising for women whose husbands retired before amendments in force - Whether unlawful discrimination -
Under section 48A of the Social Security Contributions and Benefits Act 1992F1 a married woman who retired before her husband and received her own Category A retirement pension was entitled, on her husband also retiring and receiving a Category A pension, additionally to claim Category B state pension payments by reference to her husband’s national insurance contributions. Although the legislation was later amended to extend the Category B pension entitlement to spouses or civil partners of either sex, as at 2008 it was still available only to women. By virtue of section 1(1) of the Social Security Administration Act 1992F2, a married woman was initially required to make a claim in order to receive the Category B pension. However, that requirement was removed on 17 March 2008 by amendment to regulation 3 of the Social Security (Claims and Payments) Regulations 1987F3 (which set out exceptions to the requirement to make a claim for social security benefits), with the effect that, from that date, a husband’s own Category A pension claim would itself trigger an award of the wife’s Category B pension where appropriate. The relevant exception was set out in regulation 3(1)(cb) which applied where “the spouse or civil partner of the beneficiary becomes entitled to a Category A retirement pension”. The claimant was a married woman who had first qualified for a Category B pension in August 2000 but did not make a claim for it until December 2017. Her Category B pension was backdated for 12 months to 19 December 2016 as being the maximum period of backdating for late claims which was allowable under the 1987 Regulations. The claimant’s appeal, seeking to have the pension backdated to an earlier date, was dismissed by the First-tier Tribunal. On a further appeal to the Upper Tribunal, the claimant contended that, on the proper interpretation of the amended regulation 3, her entitlement ought to be backdated to 17 March 2008. She also sought to have her entitlement further backdated to 8 August 2000, as the date when her husband had first qualified for his Category A pension, to avoid unlawful discrimination on grounds of sex, contrary to article 14 of the Convention for the Protection of Human Rights and Fundamental FreedomsF4 read with article 1 of the First Protocol to the Convention, in that many more women than men sought to take advantage of their spouse’s contribution record and therefore the obligation to make a second claim for a state pension fell disproportionately on women; alternatively, there was discrimination on grounds of “other status” by virtue of the difference in treatment between women whose husbands had become entitled to a Category A pension before 17 March 2008 (“pre-2008 married women”) and those whose husbands’ entitlement arose after that date (“post-2008 married women”).
On the claimant’s appeal—
Held, dismissing the appeal, (1) that “becomes entitled” in regulation 3(1)(cb) of the Social Security (Claims and Payments) Regulations 1987 referred to something occurring after the regulation came into force, namely, the spouse or civil partner gaining entitlement to a Category A pension; that that interpretation was supported by the legislative and policy context and was also consistent with the presumption against retrospectivity; and that, accordingly, the exception in regulation 3(1)(cb) to the requirement for married women to make a claim for Category B pension applied only to those whose husbands became entitled to a Category A pension on or after 17 March 2008 (post, paras 68–72, 75, 79).
(2) That in so far as the claimant’s allegation of discrimination on grounds of sex, contrary to article 14 of the Human Rights Convention, was based on a failure to make an adjustment or an accommodation for women applying for a Category B pension by removing the obstacle of making a second application for benefits, that amounted to a claim that she had been treated the same as others whose situation was said to be relevantly different, namely those who had not already made a first claim for benefit; that that claim had to fail because the claimant had not been placed at a disadvantage by the application of the rule about which she complained and/or there had not been relevant similarity of treatment, given that the claimant, as someone who already had a Category A pension, was if anything at an advantage compared to those claiming such a pension for the first time; and that it followed that there was no cause to treat the claimant differently from such persons (post, paras 95–99, 102).
(3) That on the assumption that the claimant’s position as a member of the cohort of pre-2008 married women gave her a “status” for article 14 purposes, she was still unable to establish direct discrimination on the basis of the difference in treatment between that cohort and the cohort of post-2008 married women because the “other status” which had been identified was inextricably tied into the introduction of a new legal regime; that, since the two cohorts were subject to different legal regimes, they were not in a relevantly similar situation to each other for the purposes of the article 14 comparison; and that, in any event, the difference in treatment was justified given that the 2008 amendments represented a highly technical change to the rules governing the making of claims to retirement pensions, made in circumstances where (i) under the existing system the onus was on the individual to make a claim for benefit, (ii) the department’s IT systems had previously lacked the functionality to identify potentially eligible cases, and (iii) the new more automated systems provided such a capability, so improving administrative efficiency, but to embark on a manual process retrospectively to bring other claimants within the scope of the change would not have been consistent with efficient administration (post, paras 105, 108, 109, 131–133).
The following cases are referred to in the judgment:
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CP/345/2011 (unreported) 21 September 2011,
CSP/5/2013 (unreported) 30 May 2013,
DH v Czech Republic (Application No 57325/00) (
Dorset Healthcare NHS Foundation Trust v MH
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GM v Secretary of State for Work and Pensions (RP)
...SSWP (RP) [2022] UKUT 85 (AAC) IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Appeal No. UA-2021-001262-RP (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 Be......