Scott v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Rimer,Lord Justice Sullivan,Lord Justice Carnwath |
| Judgment Date | 21 January 2011 |
| Neutral Citation | [2010] EWCA Civ 1162,[2011] EWCA Civ 103 |
| Docket Number | Case No: C1/2010/1117 |
| Date | 21 January 2011 |
| Court | Court of Appeal (Civil Division) |
[2010] EWCA Civ 1162
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER
(UPPER TRIBUNAL JUDGE PACEY)
Before: Lord Justice Pill
Case No: C1/2010/1117
Mr Stephen Knafler QC and Mr Desmond Rutledge (instructed by Stone King LLP) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Pill:
This is an application for permission to appeal. It is made by Sister Isobel Mary Scott. She is a Benedictine Nun. She appeals against a decision of the Upper Tribunal, Administrative Appeals Chamber, dated 16 November 2009. The Upper Tribunal reversed a finding of an Appeal Tribunal held at Stoke and dated 28 December 2006. A question has been raised whether an extension of time for this oral application is required. That turns on whether time began to run at the date the decision was signed or the date it was sent to the parties. A comparatively short extension would be required, if one is required. I do not propose to deal with the issue of statutory interpretation; the provision is at 17.4A(1) of the Rules and would turn on when the “decision on permission to appeal to the Court of Appeal is given”. If an extension of time is required, I hereby grant it.
I bear in mind that this is a second appeal, and the decision was made by a panel of three over which a High Court Judge presided. The claimant and a co-claimant, Sister Smith, made claims for state pension credit; they were refused initially, and on appeal by the Upper Tribunal, on the ground that Regulation 6(2)(b) and 6(3) of the State Pension Credit Regulations 2002 SI 1792 applied. Regulation 6 provides for a standard minimum guarantee, but in certain circumstances that is not payable. Regulation 6(2) excludes prisoners and, under subparagraph (b), “members of religious orders who are fully maintained by their order”.
The basic facts are set out in the decision of the Appeal Tribunal, and at paragraph 6 and 7 of the decision of the Upper Tribunal. On behalf of the applicant, Mr Knafler QC submits that there was no error of law by the Appeal Tribunal, and the Upper Tribunal were wrong in attributing an error of law to them. Further, he submits there is an error of law in the decision of the Upper Tribunal in relation to Regulation 6(2)(b). The reasoning of the Upper Tribunal is brief, and is set out at paragraphs 23 and 24 of their decision. I do not propose to refer to the submissions of Mr Knafler, both written and oral, or those of his learned junior who appeared below, in any detail.
I have decided to grant permission to appeal. I can envisage a number of points arising, but the central point made on behalf of the applicants is that the Upper Tribunal did not explain why the two sisters were not supporting themselves. They were running a home for good social purposes, and were maintaining themselves by their enterprise.
A human rights point is also raised. Mr Knafler accepted his difficulties on this aspect of the case. Having decided to grant permission, I propose to do so generally; though clearly, the main weight of the submission is going to be on the point of statutory construction.
In granting a second appeal, I have in mind that this is an issue of statutory construction; moreover, it is one on which the liability of the state towards a considerable number of people may apply. One aspect that concerns me is the very limited findings of fact that have been made. Points have been raised in the skeleton arguments which may depend on what facts are held to be applicable; for example, the nature of the Benedictine Order, and whether it is different from other Roman Catholic religious orders for present purposes.
I am told that this is not an order which, if the nuns are unable to continue with their work and, as they would put it, maintain themselves, they would be maintained by the Benedictine Order. But on that as on other points, it may be difficult for this court, which of course only considers issues of law, to decide upon what factual basis the decision should be reached. Mr Knafler submits that the absence of more detailed findings of fact is in his favour. That may be arguable, but my concern is that in granting leave, as I do, because of the generality of the point, this court would normally expect clear findings of fact upon which to base a legal analysis. My concerns may be unfounded, but I do suggest that consideration be given by the parties before the appeal is heard to compile an agreed statement of facts, so that the court can more readily construe the regulation on a specific factual basis.
The issues are likely to be, with respect, very obvious to the constitution considering the appeal, and I do not propose to set them out any more fully in this grant of permission. Time estimate is three to four hours; a constitution of three, and one can be a High Court judge.
Order: Application granted.
[2011] EWCA Civ 103
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Justice Walker and Upper Tribunal Judges Stephen Pacey and Edward Jacobs
Before: Lord Justice Carnwath
Lord Justice Rimer
and
Lord Justice Sullivan
Case No: C1/2010/1117
Mr Stephen Knafler QC and Mr Desmond Rutledge (instructed by Stone King LLP) appeared on behalf of the Appellant.
Ms Marie Demetriou (instructed by Office of the Solicitors for DWP) appeared on behalf of the Respondent.
Lord Justice Rimer:
Introduction
The appellant is Sister Isobel Mary Scott. The respondent is the Secretary of State for the Department of Work and Pensions. In 2005 Sister Isobel made a claim to the DWP for the payment of a state pension credit. By a decision dated 22 April 2005, her claim was refused on the ground that it was excluded by the fact that she was fully maintained by a religious order of which she was a member. Sister Isobel appealed to the Appeal Tribunal (now the First-Tier Tribunal) and on 7 December 2006 Mrs D Gough allowed her appeal. With the permission of Mr Commissioner Rowland, the Secretary of State in turn appealed against that decision to the Social Security Commissioner, whose jurisdiction passed in mid-appeal to the Upper Tribunal (Administrative Appeals Chamber). By a decision dated 8 October 2009 the Upper Tribunal (Walker J and Upper Tribunal Judges Stephen Pacey and Edward Jacobs) allowed the appeal, set aside the decision below and re-made the decision itself. Its decision was to refuse Sister Isobel's claim on the same ground upon which it had originally been refused, namely that she was fully maintained by the religious order of which she was a member.
With the permission of Pill LJ, Sister Isobel now appeals against that decision on two grounds. First, that the Upper Tribunal was wrong in law to find that she was fully maintained as aforesaid; and, secondly, that when re-making the decision it proceeded on a mistaken factual basis as to a material matter. Mr Knafler QC and Mr Rutledge represented Sister Isobel and Ms Demetriou represented the Secretary of State. Both Mr Rutledge and Ms Demetriou also appeared before the Upper Tribunal.
Entitlement to a state pension credit
The statutory scheme is contained in the State Pension Credit Act 2002 and the State Pension Credit Regulations 2002 (SI 2002/1792). The Act introduced a new state pension credit ("the pension credit") for persons aged 60 and over. The pension credit comprises two elements: (i) a guarantee credit to ensure a minimum level of income to those aged 60 and over (this replaced the minimum income guarantee); and (ii) a savings credit providing, from age 65, income for pensioners with low or modest private incomes in addition to the basic state pension (this was a new form of benefit).
Sections 1 to 3 of the Act set out the basic conditions of entitlement to the pension credit. Sections 1(2)(c)(i) and (ii) provide that the guarantee credit is payable to a claimant who has no income or whose income does not exceed the "appropriate minimum guarantee"; that if he has no income, the guarantee credit shall be the appropriate minimum guarantee; and that if he has income, the guarantee credit shall be the difference between the appropriate minimum guarantee and his income. Section 2(3) provides that the "appropriate minimum guarantee "shall be the total of (a) the standard minimum guarantee, and (b) such prescribed additional amounts as may be payable. The purpose of the guarantee credit is to ensure that the claimant has income equal to at least the amount of the "standard minimum guarantee", being a prescribed amount that the government decides is necessary to cover a pensioner's basic living needs. In April 2005 the guarantee credit was £109.45 per week for a single person.
Section 2(6) of the Act provides that:
"Regulations may provide that, in prescribed cases, subsection (3) [summarised in [4] above] shall have effect with the substitution for the reference in paragraph (a) to the standard minimum guarantee of a reference to a prescribed amount."
The 2002...
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