Secretary of State for Social Security v Scully
| Jurisdiction | England & Wales |
| Judge | SIR CHRISTOPHER SLADE,LORD JUSTICE STOCKER,LORD JUSTICE PURCHAS |
| Judgment Date | 15 September 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0612-5 |
| Docket Number | 92/0572 |
| Date | 15 September 1992 |
| Court | Court of Appeal (Civil Division) |
[1992] EWCA Civ J0612-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Stocker
and
Sir Christopher Slade
92/0572
MR. DAVID PANNICK Q.C. (instructed by P.K.J. Thompson Esq., Solicitor to the Departments of Health and Social Security) appeared on behalf of the Appellant (Respondent).
MR. J. HOWELL (instructed by Messrs Sinclair Taylor & Martin) appeared on behalf of the Respondent (Appellant)
This is an appeal by the Secretary of State for Social Security from a decision of Mr. Commissioner Goodman given on 25th April 1991. The respondent is a married woman, Mrs. Nora Scully ("the claimant"), who was born on 5th June 1955. She made a claim for "sickness benefit", which is a contributory benefit as described in section 12(1) (b) of the Social Security Act 1975 ("the 1975 Act"). Section 13(1) of that Act provides that entitlement to contributory benefits, including sickness benefit, "depends on contribution conditions being satisfied". Section 13(6) provides that in relation to such benefits "the relevant contribution conditions are those specified in Part I of Schedule 3 to this Act". Section 14(1) provides:
"Subject to the provisions of this section, a person who satisfies any of the three conditions of subsection (2) below shall be entitled—
(a) to unemployment benefit in respect of any day of unemployment which forms part of a period of interruption of employment; and
(b) to sickness benefit in respect of any day of incapacity for work which forms part of such a period".
Section 14(2) (a) then sets out three conditions, of which only the first needs to be quoted:
"The conditions of this subsection are that—
(a) the person is under pensionable age on the day in question and satisfies the contribution conditions specified for unemployment or, as the case may be, sickness benefit in Schedule 3, Part I, paragraph 1; or…"
Schedule 3, Part I, paragraph 1, duly specifies the "contribution conditions" and, as originally enacted, provides as follows:
"(1) The contribution conditions for unemployment benefit or sickness benefit are the following.
(2) The first condition is that—
(a) the claimant must in respect of any one year have actually paid contributions of a relevant class, and those contributions must have been paid before the relevant time; and
(b) the earnings factor derived from those contributions must be not less than that year's lower earnings limit multiplied by 25.
(3) The second condition is that—
(a) the claimant must in respect of the relevant past year have either paid or been credited with contributions of a relevant class; and
(b) the earnings factor derived from those contributions must be not less than that year's lower earnings limit multiplied by 50.
(4) For the purpose of these conditions—
(a) 'the relevant time' is the day in respect of which benefit is claimed; and
(b) 'the relevant past year' is the last complete year before the beginning of the relevant benefit year; and
(c) 'the relevant benefit year' is the benefit year in which there falls the beginning of the period of interruption of employment which includes the relevant time'".
Certain amendments to paragraph 1 have been made from time to time, but it has not been suggested that any of them affect the question which we have to decide on this appeal.
The expression "period of interruption of employment" is not as such defined in the 1975 Act, but the expression "day of interruption of employment" is defined by section 17(1) (c) as meaning "a day which is a day of unemployment or of incapacity for work".
Regulation 7(1) (c) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983, SI 1983/ 1598, as in force at the relevant dates provided:
"For the purposes of…sickness and invalidity benefit…
(c) a day shall not be treated as a day of incapacity for work if it is a day in respect of which a person is disqualified for receiving sickness benefit or invalidity benefit".
By a decision issued on 10th August 1988, an adjudication officer decided (inter alia and so far as relevant for present purposes) that the claimant was "not entitled to sickness benefit from 20.6.87 to 15.9.88" (inclusive) on the grounds that
"the earnings factor derived from contributions of a relevant class paid by or credited to her in the relevant year which ended on 5 April 1986 is less than 50 times the lower earnings limit for that year. (Social Security Act 1975, Schedule 3, paragraph 1(3))"—
in other words, on the grounds that she did not satisfy the second contribution condition.
The claimant appealed against this decision to a social security appeal tribunal which, by a decision of 11th January 1989, dismissed her appeal. She then appealed from that decision to the commissioner.
In his decision (paragraph 8) the commissioner pointed out that the claimant had an insufficient contribution record for payment of sickness benefit for the period 20th June 1987 to 20th June 1988 unless it could be linked to an earlier period. She, however, contended that the year ending 5th April 1986 was the wrong "year" for ascertaining her contributions record and that her period of incapacity due to sickness should be linked with a period during which maternity benefit had been paid to her. It was submitted that there had been a single continuous "period of interruption of employment" from the start of the payment of the maternity benefit on 18th November 1985 right through to the end of the relevant period of incapacity, 15th September 1988. If this submission were correct, it was common ground before the commissioner that the relevant contribution year would not be the year ending on 5th April 1986 but that ending on 5th April 1984 in which the claimant had an adequate contributions record for the payment of benefit.
The commissioner, however, (by paragraphs 28 to 32 of his decision) rejected the submission. He held (paragraph 32) that there was
"no continuity of a period of interruption of employment between the end of the maternity benefit period on 22nd March 1986 and the beginning thereafter of the period for which incapacity through illness was claimed".
He therefore held that the relevant contribution year was that ending on 5th April 1986 and that the claimant was not entitled to sickness benefit for the period in issue. In the course of his decision, however, he also considered, and rejected, another major submission, namely that he had no jurisdiction to determine the question before him, on the grounds that it was a matter reserved for decision by the Secretary of State under section 93(1) (b) of the 1975 Act.
On 26th July 1991 the commissioner granted both the Secretary of State and the claimant leave to appeal to this court from his decision. The Secretary of State's appeal raises the question whether (as he submits) section 93(1) (b) deprived the social security commissioner of jurisdiction to decide the issue between the parties relating to the claimant's entitlement or otherwise to sickness benefit. It has therefore been agreed between the parties that this issue of jurisdiction should be determined before she decides whether to appeal against the substantive decision of the commissioner, which went against her.
Before discussing the issue of jurisdiction, I must refer to a few more of the relevant statutory provisions (as amended).
Section 93 of the 1975 Act provides:
"(1) Subject to this Part of this Act, any of the following questions arising under this Act shall be determined by the Secretary of State—…
(b) subject to subsection (2) below, a question whether the contribution conditions for any benefit are satisfied, or otherwise relating to a person's contributions or his earnings factor;…
(3) The Secretary of State may, if he thinks fit, before determining any question within subsection (1) above, appoint a person to hold an inquiry into the question, or any matters arising in connection therewith, and to report on the question, or on those matters, to the Secretary of State".
It has not been suggested that section 93(2) is relevant. Section 94 provides a route for appeals from a decision of the Secretary of State:
"(1) A question of law arising in connection with the determination by the Secretary of State of any question within section 93(1) above may, if the Secretary of State thinks fit, be referred for decision to the High Court or, in Scotland, the Court of Session.…
(3) Any person aggrieved by the decision of the Secretary of State on any question of law within subsection (1) above which is not referred in accordance with that subsection may appeal from that decision to the court.
(4) The Secretary of State shall be entitled to appear and be heard on any such reference or appeal.…
(7) Notwithstanding anything in any Act, the decision of the court on a reference or appeal under this section shall be final".
Section 98 provides:
"(1)…there shall be submitted forthwith to an adjudication officer for determination in accordance with sections 99 to 104A below—
(a) any claim for benefit;
(b) subject to subsection (2) below, any question arising in connection with a claim for, or award of, benefit; and
(c) any question whether a person would by reason of the provisions of, or of any regulations under, section 20( 1) or (2) of this Act have been disqualified for receiving unemployment benefit, sickness benefit or invalidity...
To continue reading
Request your trial
-
CP 65 1993
...Administration Act 1992 (Scrivner v. Chief Adjudication Officer [1990] 1 CMLR 637 and Secretary of State for Social Security v. Scully [1992] 4 All ER 1 distinguished) [now reported as R(S) 5/93] (paras. 11 and 2. if section 48 (3) was discriminatory, the discrimination was permitted by Art......
-
CIB 1602 2006
...are satisfied. This involves deciding the commencement of a PIW2. 1 s 30A(1) & Sch 3, Part 1, para 2; 2 Secretary of State v. Scully [1992] 4 ALL ER 1” After setting out details of the first and second contribution conditions, the DMG “56014 The DM determines1 1. earnings factors 2. whether......