CJSA/1542/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Exeter appeal tribunal dated 17 November 1999 and I substitute my own decision, which is that the amount of contribution-based jobseeker’s allowance to which the claimant would otherwise be entitled from 1 July 1999 to 11 November 1999 is nil.

REASONS

2.	I held an oral hearing at which the Secretary of State was represented by Mr Leo Scoon of the Office of the Solicitor to the Department of Health and the Department for Work and Pensions.  The claimant neither appeared, nor was represented.

3.	The facts of the case are not in dispute.  The claimant was made redundant from his employment with London and Manchester (Management Services) Limited, with effect from 30 June 1999.  He had had just over four months’ notice, which exceeded the minimum period to which he was entitled.  On 28 June 1999 he received a lump sum redundancy payment consisting of his statutory entitlement and an additional payment of “3 months redundancy payment”.  From 1 October 1999, he was eligible for two further monthly payments, paid on the 28th of each month and then further payments until he obtained employment.  It appears he worked for an odd week at the end of July 1999 but then did not obtain further employment until mid-November 1999, which meant that he received monthly payments in October and November.  An adjudication officer decided that the amount of jobseeker’s allowance to which the claimant was entitled from 1 July 1999 was nil because he was in receipt of pension payments, which exceeded £50 pw by more than the amount of jobseeker’s allowance to which he would otherwise have been entitled.  It is not in dispute that section 4(1)(b) of the Jobseekers Act 1995 and regulation 81 of the Jobseeker’s Allowance Regulations 1996 have that effect where a person has received “pension payments”.   What is in issue is whether the payments received by the claimant were such payments.

4.	The claimant appealed against the adjudication officer’s  decision and the tribunal allowed his appeal in respect of the months of October and November on the ground that the payments made in respect of those months were not to be considered as pension payments because they were conditional.  The Secretary of State obtained leave to appeal on the ground that the tribunal had erred in distinguishing between the lump sum payment and the subsequent periodical payments and that the claimant should have been disentitled throughout the period from 1 July 1999 in respect of which he claimed.  The claimant has now conceded that he is not entitled to jobseeker’s allowance from 1 October 1999 but he submits that he was entitled before that date.

5.	The term “pension payments” is defined in section 35 of the Jobseeker’s Act as meaning –

“periodical payments made in relation to a person, under a personal pension scheme or, in connection with the coming to an end of an employment of his, under an occupational pension scheme or a public pension scheme”.

The phrase “occupational pension scheme” is defined by reference to the definition in section 1 of the Pensions Schemes Act 1993 and means –

“any scheme or arrangement which is comprised in one or more instruments or agreements and which has, or is capable of having, effect in relation to one or more descriptions of categories of employments so as to provide benefits, in the form of pensions or otherwise, payable on termination of service, or on death or retirement, to or in respect of earners with qualifying service in an employment of any such description or category”.

In R(JSA) 1/01, the Commissioner held that, in the light of the decision of the Court of Appeal in Westminster City Council v. Haywood [1998] Ch 377, the definition of “occupational pension scheme” was wide enough to include a scheme for payments on termination of service that was wholly separate from any retirement pension scheme.  In CJSA/1051/00, the same Commissioner considered the scheme set up by the London and Manchester Group that applies also to the present claimant.  He held that the monthly payments were “pension payments” even thought they were paid out of the employer’s own resources, rather than a separate fund, and even though they had additional conditions attached to them.  That was because they were nonetheless paid under a “scheme or arrangement which is comprised in one or more instruments or agreements”.  Given the decision of the Court of Appeal, I respectfully agree.

6.	During the course of the hearing before me, I suggested that the lump sum payment made on 28 June 1999 was not a periodic payment and so was not caught by the definition of “pension payments”.  Mr Scoon was disposed to concede that point.  However, upon reflection, that does not appear right.  In CJSA/1051/00, the Commissioner considered this issue and said:

“15.	Finally the alternative argument on the first three months’ payment under the drip feed arrangement (that it did not count as a “periodical payment” at all because all three months were paid together in one lump in advance) has also in my judgment to be rejected, since the terms of entitlement at page 11 and the method of calculation at page 13 make it quite clear that this was a monthly entitlement from the start of the drip feed arrangement on the date of redundancy. That is in my judgment sufficient to bring the whole of the drip feed payments into account as periodical payments notwithstanding that the first three of them were paid together in advance.  It could not be disputed that if the whole of the drip feed arrangement had been for quarterly payments in advance they would all have counted as “periodical payments” from the outset, and I cannot see that it can make any difference that there should be a switch to a monthly payment interval in the fourth and following months, the first payment in advance being no doubt intended to assist the employee over the immediate aftermath of his redundancy.”

In the absence of authority, I am not sure that I would have reached the same conclusion because the fact that a payment is calculated by reference to monthly figures does not necessarily make it a periodical payment and it is quite possible for a lump sum to be followed by periodical payments.  However, it would be most unsatisfactory to have differing Commissioners’ decisions arising on the interpretation of a single scheme and, as it is a matter of judgment whether a single payment may properly be characterised as an aggregate of a number of periodical payments, I do not consider that I should differ from the approach taken in CJSA/1051/00.

7.	The claimant has argued that the different treatment accorded to people who receive lump sum payments as opposed to those who receive periodical payments amounts to discrimination contrary to Article 14 of the European Convention on Human Rights.  The Secretary of State has retorted that Article 14 applies only where one of the other provisions of the Convention is engaged and that, as none is, the claimant’s submission must fail.  That seems a little simplistic, as it seems to me to be implicit in the claimant’s submission that he considers he has been deprived of a possession by a discriminatory law, contrary to the combined effect of Article 14 and Article 1 of Protocol 1, although I consider that the claimant would face formidable difficulties in showing that Article 1 of Protocol 1 was engaged.  However, it is unnecessary for me to consider the issue more deeply because this case arises on appeal from a decision given before the Human Rights Act 1998, incorporating the Convention into English law, came into force on 2 October 2000.  In Regina v. Lambert [2001] 3 W.L.R 206 and Regina v. Kansal (No 2) [2001] 3 W.L.R. 1562, the House of Lords has held that the Act cannot be relied upon where the decision under appeal was made before it came into force.

8.	Accordingly, I allow the Secretary of State’s appeal.

(signed)	M. ROWLAND
Commissioner
6 March 2002