CP/14276/96

The Social Security and Child Support Commissioners
SOCIAL SECURITY ACTS 1975 TO 1990
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992 
APPEAL FROM A DECISION OF THE SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the claimant’s appeal, brought by leave of the chairman, against the decision of the Newcastle social security appeal tribunal on 17 January 1996 that she was not entitled to a retirement pension from 4 March 1989 to 2 June 1993. This is because the decision is not erroneous in law.

2. The claimant reached her sixtieth birthday, and her pensionable age, on 4 March 1989. She was during this period living in Beijing, China and was not aware of her need to claim her pension entitlement. She made no claim for her pension until she sent a letter to the Department of Social Security some time later. This was accepted as a claim with effect from 3 June 1994. which was the day her letter was received. These facts are not in dispute. Following enquiries to check the claimant’s correct contribution record, her pension was awarded from 3 June 1993, and this was confirmed by the tribunal. The claimant appealed against the refusal to backdate her pension to the day she became sixty. She did so because she states she would have claimed if she had known that was necessary. Further, she complained that the DSS did not notify her of the need to claim. She also asked for arrears of pension or a pension to be paid at a higher rate to compensate.

3. The law relating to the claimant’s appeal is clear. Section 1 of the Social Security Administration Act 1992 (and the equivalent provisions in previous legislation) require all claimants to make a claim for a retirement pension. Until a claim has been made, no pension can be paid. That is an absolute rule. Where a claim is made late, power exists to allow payment before the date of the claim. But section 1 of the Social Security Administration Act 1992 also provides that, without exception, a pension cannot be paid for any period more than twelve months before the date on which a claim for it is made or treated as made.

4. The claimant was treated as making her claim when her first letter was received by the Department. This is the earliest date on which it could be treated as having been made under the relevant rules in the Social Security (Claims and Payments) Regulations 1987. Further, her claim was backdated for the maximum period of twelve months allowed by the Act. The Department had no power to backdate more than this because of the express provisions of the legislation. This is so no matter why the claimant did not claim earlier. For that reason, the tribunal did not need to investigate why the DSS could not (if it had not) notified her about her right to claim. It would have made no difference to the result.

5. Nonetheless, the claimant should be aware that her late claim has resulted in her receiving a higher weekly rate of pension than she would have received had her pension been paid from 1989. The tribunal did not investigate the matter here as it was looking only at the period for which pension was not paid. However, though I do not have all the details before me, it is clear from the papers in the appeal that the claimant is receiving pension at a higher rate than she would otherwise have done. (See the letter from the DSS Overseas Branch dated 29 July 1995). Had I not noted this, I would have made directions on the matter, as it was expressly raised by the claimant in her letters about the appeal.

6. Section 55 of the Social Security Contributions and Benefits Act 1992 provides for an increase in the weekly rate of retirement pension where entitlement to the pension is deferred. While an increase of a deferred retirement pension is intended to make provision for those who deliberately delay claiming pension, it applies equally to those who delay claiming pension for any other reason. It therefore applies to a late claim such as that made by the claimant. The detail is in Schedule 5 to the Social Security Contributions and Benefits Act 1992. Under that Schedule, an increase in the weekly rate of pension is payable, in effect, for every week of delay in claiming pension after the first six weeks. This applies for each week for up to five years from the claimant’s pensionable age. The rate is expressed as 1/7 per cent of the weekly rate for each week of deferment (about 7.4 per cent a year). It is payable for life.

7. In the claimant’s case, her pension was deferred from 4 March 1989 to 3 June 1993. She is therefore entitled to receive an increase of pension for each week of this delayed period. This means that she should be receiving a weekly increase of pension of somewhat over 30% of her weekly rate.

8. For these reasons, I dismiss the claimant’s appeal, but I do so noting that, in her words, she has been, and continues to be, compensated for the whole period of delay in receiving her pension.

(Signed)
David Williams
Commissioner 
27 April 1998