[2008] NISSCSC C1_08_09(RP) (16 April 2008)

Decision No:  C1/08-09(RP)(T)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

RETIREMENT PENSION

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 3 July 2006

DECISION OF A TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

1.	The Department was represented by Mr Donnan.

2.	The applicant attended and was not represented.

3.	Leave to appeal is granted as there is a question of law as to whether the claims form was duly completed on behalf of the appellant.  With the consent of the parties, we treat the leave application as an appeal.  The appeal is dismissed for the following reasons.

4.	Mr Donnan outlined the change in claims rules which were introduced in 2005.  The applicant reached his 65th birthday on 15 March 2005.  He was sent a claim pack in November 2004, four months before that date.  The time for claiming retirement pension was stated to be three months.

5.	New packs were issued in February 2005 but Mr Donnan explained that they were not sent to those who had already received claim packs in the previous months.  These packs explained the new rules for claiming and the transitional arrangements.  Those who claimed before 6 July 2005 were subject to the three month rule.  From 6 July 2005 until 5 April 2006, claims could be made from 6 April 2005 if all other conditions were satisfied.  From 6 April 2006, the period of claim was 12 months.  Thus in the applicant’s case, as he claimed his pension on 10 November 2005, he was paid from 6 April 2005 in accordance with the transitional rules.  Under the old rules, his claim would have been limited to 10 August 2005.

6.	Mr Donnan conceded that the claimant was not specifically alerted to the changes in the claims rules in the claim pack sent to him and he may therefore have been misled as of his rights.

7.	Mr Smith from the Pensions Branch of the Department assisted us by explaining how a deferred pension, or a lump sum in lieu, would have been calculated had the appellant deferred his claim.

8.	The applicant appealed to the appeal tribunal on the grounds that he was not paid his pension between 15 March and 5 April 2005.  He did not attend the hearing and the tribunal upheld the Departmental decision.  There is some confusion in the reasons for the decision as to how the enhancement rules operated, but the tribunal was satisfied that the entitlement rules had been correctly applied for an ordinary pension.

9.	At the hearing before us, the applicant confirmed that the tribunal was correct to conclude that he did not intend to apply for an enhanced pension.  He laboured under the misunderstanding that he did not qualify for an enhancement until 12 months after he reached 65.  But in any event, his financial circumstances were such that he decided in November 2005 to claim his ordinary pension from the date he reached 65.  His appeal was based solely on the argument that he was wrongfully denied three weeks’ pension until 6 April 2005.

10.	He was not aware of the new transitional rules when he claimed.  He was assisted to make his claim by an official over the telephone.  He does not recollect any discussion about deferment of retirement or enhancement.  Nor was he advised about the changes in the claims rules.  He concedes that he merely signed the claims form and did not read it in detail.

11.	We are satisfied that the decision-maker applied the transitional claims rules correctly to this claim.  The tribunal was therefore correct to dismiss the appeal.

12.	It is regrettable, however, that the claimant was not made aware of the new claims rules and sent details of the information made available to all potential claimants from February 2005.  We have concluded that he was materially misled.  Mr Donnan explained that consideration would be given to making an ex gratia payment.

13.	We are also concerned that when the applicant was advised about his claim by an official over the telephone in November 2005, he was not alerted specifically to the deferment rules, despite the fact that it was then almost nine months after he reached retirement age. If claims forms are completed on behalf of pensioners by officials in such circumstances, then it is essential that detailed and reliable advice is given.

(signed)  J A H Martin QC

Chief Commissioner

C G MacLynn

Deputy Commissioner

16 April 2008