GM v Secretary of State for Work and Pensions

JurisdictionUK Non-devolved
Neutral Citation[2022] UKUT 85 (AAC)
Year2022
CourtUpper Tribunal (Administrative Appeals Chamber)
Upper Tribunal GM v Secretary of State for Work and Pensions [2022] UKUT 85 (AAC)

2022 Feb 22; March 23

Upper Tribunal Judge Wikeley

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 - Social Security Contributions and Benefits Act 1992 (c 4), s 48A(1) - Social Security Administration Act 1992 (c 5), s 1(1) - Human Rights Act 1998 (c 42), Sch 1, Pt I, art 14, Pt II, art 1 - Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), reg 3(1)(cb)

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 6872, 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 9599, 102).

Thlimmenos v Greece (2000) 31 EHRR 15, ECtHR (GC) and R (Drexler) v Leicestershire County Council [2019] ELR 412 applied.

(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, 131133).

R (Harvey) v Haringey London Borough Council [2019] ICR 1059 applied.

Minter v United Kingdom (2017) 65 EHRR SE6, ECtHR considered.

The following cases are referred to in the judgment:

Bramley Ferry Supplies Ltd v Revenue and Customs Comrs [2017] UKUT 214 (TCC); [2017] BTC 523, UT

CP/345/2011 (unreported) 21 September 2011, UT

CSP/5/2013 (unreported) 30 May 2013, UT

DH v Czech Republic (Application No 57325/00) (2007) 47 EHRR 3, ECtHR (GC)

Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC); [2009] PTSR 1112, UT

Foreign, Commonwealth and Development Office v Information Comr [2021] UKUT 248 (AAC); [2022] 1 WLR 1132, UT

Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303; [2006] 1 WLR 3202; [2006] 1 All ER 748, CA

Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 WLR 113; [2004] 3 All ER 411; [2004] 2 FLR 600, HL(E)

Hedderwick v Federal Comr of Land Tax (1913) 16 CLR 27

JT v First-tier Tribunal (Social Entitlement Chamber) [2018] EWCA Civ 1735; [2019] 1 WLR 1313, CA

L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486; [1994] 2 WLR 39; [1994] 1 All ER 20; [1994] 1 Lloyd’s Rep 251, HL(E)

Mac Fisheries (Wholesale & Retail) Ltd v Coventry Corpn [1957] 1 WLR 1066; [1957] 3 All ER 299

Minter v United Kingdom (Application No 62964/14) (2017) 65 EHRR SE6, ECtHR

R v Inhabitants of St Mary, Whitechapel (1848) 12 QB 120

R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15; [2008] AC 1312; [2008] 2 WLR 781; [2008] 3 All ER 193, HL(E)

R (Brown) v Secretary of State for the Home Department [2015] UKSC 8; [2015] 1 WLR 1060; [2015] 3 All ER 317, SC(E)

R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21; [2019] PTSR 1072; [2019] 1 WLR 3289; [2020] 1 All ER 573, SC(E)

R (Delve) v Secretary of State for Work and Pensions [2020] EWCA Civ 1199; [2021] ICR 236; [2021] 3 All ER 115, CA

R (Drexler) v Leicestershire County Council [2019] EWHC 1934 (Admin); [2019] ELR 412; [2020] EWCA Civ 502; [2020] ELR 399, CA

R (Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council [2021] UKSC 18; [2021] 1 WLR 2794; [2021] 4 All ER 381, SC(E)

R (Harvey) v Haringey London Borough Council [2018] EWHC 2871 (Admin); [2019] ICR 1059

R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778; [2020] PTSR 1872, CA

R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687; [2003] 2 WLR 692; [2003] 2 All ER 113, HL(E)

R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63; [2009] PTSR 336; [2009] 1 AC 311; [2008] 3 WLR 1023; [2009] 2 All ER 556, HL(E)

R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223; [2021] 3 WLR 428; [2022] 3 All ER 95, SC(E)

R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51; [2018] 3 WLR 1831; [2019] 2 All ER 351, SC(E)

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  • GM v Secretary of State for Work and Pensions (RP)
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • Invalid date
    ...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......

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