Secretary of State for Work and Pensions v Nelligan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Kennedy |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2003] EWCA Civ 555 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2002/2200 |
| Date | 15 April 2003 |
[2003] EWCA Civ 555
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Lord Justice Kennedy
Lord Justice Scott Baker and
Mr Justice Blackburne
Case No: A1/2002/2200
Mr David Forsdick (instructed by Solicitor, Department for Work and Pensions) for the Appellant_The Respondent did not appear and was not represented
The State pays two different kinds of retirement pension. These are called Category A and Category B. Basically the amount of a Category A pension is determined by the contributions the recipient has made over the whole of his or her working life. In the case of a Category B pension entitlement is based on marriage and the contributions of the other party to the marriage; the spouse must have reached retirement age and be entitled to a Category A pension. Sections 43 to 55 of the Contributions and Benefits Act 1992 ("the 1992 Benefits Act") provide for payment of these pensions.
The present appeal is by the Secretary of State against the decision of Mr David Williams, a Social Security Commissioner, on 22 April 2002, allowing an appeal from the Bexleyheath Appeal Tribunal on 5 January 2001. It is made with the permission of Mr Williams, whose decision conflicts with an earlier decision of Wood (CP/ 3/2001) by Mrs Deputy Commissioner Ramsay and, we were told, the current practice. Its outcome is of general importance to the Department as well as specific importance to the respondent.
The respondent was 60 on 14 August 1986. She claimed and received a Category A pension on the basis of her own national insurance contributions. Because of the level of those contributions it was 34% of the maximum amount. Her husband, Mr Nelligan, was 65 on 20 October 1992. He claimed and received a Category A pension from that time. The fact that Mr Nelligan reached the age of 65 triggered the right for the respondent to claim what could be described as a parasitic pension under Category B. The respondent could have made such a claim in 1992 and the standard procedure is, and was in 1992, to send someone such as Mr Nelligan a standard pack about 4 months before he reaches state pension age. The pack should have contained a second claim form for his wife to make a Category B claim should she choose to do so. It was accepted that for some reason no such pack was sent in this case. However, the Secretary of State's position is that he was under no legal obligation to send a pack and that it would be administratively impossible to notify everyone entitled to a retirement pension, hence the provision to which I shall come in a moment that anyone entitled to a benefit must claim it. The respondent did not make her claim until 1 March 2000 and it was treated as securing entitlement to benefit from 2 December 1999 (3 months before). This, according to regulation 19 of the Social Security (Claims and Payments) Regulations 1987 (S.1. 1987/1968) ("the 1987 Regulations") is the maximum period for which payment can be backdated.
A person who qualifies for both a Category A and a Category B pension is entitled to receive the larger one but not both. The respondent's Category B pension was larger than her Category A pension. Her claim is that her Category B pension should have been backdated to 1992 (when her husband was 65) rather than to December 1999. The Bexleyheath Appeal Tribunal dismissed her appeal on the ground that it had no jurisdiction to do as she wished because she did not claim the pension until March 2000. However, she appealed to the Social Security Commissioner who allowed her appeal.
The relevant statutory scheme is to be found in section 43 and following of the 1992 Benefits Act. Section 44 sets out the basic requirements for entitlement to a Category A pension. Section 48A sets out the basic requirements for entitlement to a Category B pension. However, these sections have also to be read in the context of section 1 of the Social Security Administration Act 1992 ("the 1992 Administration Act") which provides:
"1. (1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied ?
(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
(b) he is treated by virtue of such regulations as making a claim for it."
Section 43 of the 1992 Benefits Act deals with persons entitled to more than one retirement pension. It provides, so far as material, as follows:
"(1) A person shall not be entitled for the same period to more than one retirement pension under this Part of this Act.
(2)…….
(3) A person who, apart from subsection (1) above, would be entitled –
(a) to both a Category A and a Category B retirement pension under this Part for the same period….
(b)……..
may from time to time give notice in writing to the Secretary of State specifying which of the pensions referred to in paragraph (a)……above he wishes to receive.
(4) If a person gives such a notice, the pension so specified shall be the one to which he is entitled in respect of any week commencing after the date of the notice.
(5) If no such notice is given, the person shall be entitled to whichever of the pensions is from time to time the most favourable to him (whether it is the pension which he claimed or not)."
This appeal turns on the effect of the words in brackets in section 43(5) 'whether it is the pension which he claimed or not' and in particular whether they override or displace the general provision in section 1(1)(a) of the 1992 Administration Act that no one is entitled to any benefit unless he makes a claim for it within the prescribed time.
The Secretary of State's submission is that because the respondent did not claim a Category B pension until 1 March 2000, section 1(1)(a) of the 1992 Administration Act prevents her entitlement being backdated to 1992. The respondent says that the Category B pension was more favourable to her and the words in brackets in section 43(5) of the 1992 Benefits Act enable her to have the claim backdated to 1992 when her husband was 65 and her entitlement first arose. The Social Security Commissioner found in her favour. He said:
"27. The proper context for the interpretation of section 43(5) is that of the section of which it forms part, noting the provisions that existed prior to the consolidation of those previous measures into the current section. As it is a section expressly designed to deal with conflicts between other sections, I do not find it of assistance to note those conflicts. Subsection (5) is a default provision that operates in cases where an individual has not given notice in writing of the kind which she is entitled to give from time to time under section 43(3). The effect of a notice is to choose which of the two pensions to which she is entitled the claimant wishes to receive. If notice is given, then subsection (4) provides that it is to have effect. If it is not, then subsection (5) operates.
28. Subsection (3) is itself an exception to the rule in subsection (2) if the claimant chooses to use it. A claimant does not have to give a notice under subsection (3). Subsection (2) allows an individual to receive both a Category A pension and a Category B pension at the same time, but makes provision (by reference to section 73 of the Social Security Administration Act 1992) to remove any overlap caused by the double entitlement. Section 73 is brought into effect by the Social Security (Overlapping Benefits) Regulations 1979. The effect of subsection (2), read with this regulation, is to stop an individual receiving more than the specified maximum amount of pension despite the double entitlement. Subsection (3) does not allow this capping to be sidestepped. It merely provides that the claimant could decide, say, to receive her Category B pension entitlement without reference to her Category A entitlement.
29. Subsection (5) is not drafted in limited terms. Nor was its predecessor in section 27(2). In my view, subsection (5) means what it says. (The respondent) was entitled from the date of her husband's claim to both a Category A pension and a Category B pension. Subsection (2) stopped her being entitled to more than the higher of them. Subsection (3) allowed her to choose whether she...
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