RFMH/SH/CW/RC/1

           

THE SOCIAL SECURITY COMMISSIONERS

				Commissioner’s Case No:	CP/1711/2001

SOCIAL SECURITY ACTS 1992- 1998

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

MRS COMMISSIONER R F M HEGGS

1.	My decision is that the decision of the tribunal given on 9 March 2000 is not erroneous in point of law.  As a result this appeal fails.  

2.	This is the claimant’s appeal against the decision of the tribunal of 9 March 2000 leave having been granted by the tribunal chairman.  I held an oral hearing of the appeal.  The claimant did not attend but was represented by her husband Mr B E Seabrook.  The Secretary of State was represented by Mr J Chang from the Solicitor’s office of the Department for Work and Pensions. 

3.	The claimant was born on 3 June 1939.  She attained the age of 60 on Thursday 3 June 1939.  She claimed a Category A retirement pension, which she was awarded at a specified weekly rate from Monday 7 June 1999, this being the first pay day following the date of entitlement.  The claimant contended that she was entitled to the retirement pension for the inclusive period from 3 to 6 June 1999.  This contention was rejected.  The claimant appealed to the tribunal.  The claimant did not attend the hearing of the appeal but was represented by Mr Seabrook.  In the event the tribunal dismissed the appeal.

4.	It s not in dispute that the claimant satisfied the conditions of entitlement to a Category A retirement pension under section 44(1) of the Social Security Contributions and Benefits Act 1992 so that “subject to the provisions of this Act, he shall become so entitled on the day on which he attains pensionable age and his entitlement shall continue throughout his life”.  However section 44(2) provides:-

	“	(2)	A Category A retirement pension shall not be payable in respect of any period falling before the day on which the pensioner’s entitlement is to be regarded as commencing for that purpose by virtue of section 5(1)(k) of the Administration Act.”.

5.	Section 5(1) of the Social Security Administration Act 1992 (“the Act”) contains provisions enabling regulations to be made.  Section 5(1)(k) enables the making of regulations to provide for the day on which entitlement to a benefit is to begin or end.  

6.	The relevant regulations are the Social Security (Claims and Payments) Regulations 1987 (“the Regulations”).  Regulation 16 is relevant and provides so far as material: –

	“	16.	-	(1)	For the purposes only of determining the day from which benefit is to become payable, where a benefit … is awarded for a period of a week, or weeks, and the earliest date on which entitlement would otherwise commence is not the first day of a benefit week, entitlement shall begin on the first day of the benefit week next following.  

			(1A)-(2)	…

			(3)		For the purposes of this regulation the first day of the benefit week –

						(a)-(b)	…

						(c)	in any other case is the day of the week on which the benefit is payable in accordance with regulation 22 (long-term benefits).  

			(4)	..”

7.	Regulation 22(3) is relevant and provides “Schedule 6 specifies the days of the week on which the various long‑term benefits are payable”.

8.	Paragraph 5 to Schedule 6 provides that retirement pension is payable on a Monday.  This is subject to five exceptions.  The first applies when entitlement began before 28 September 1984 and the second applies to a widow’s benefit, neither of which are applicable in this case.  In a Direction dated 1 October 2001 I requested the Secretary of State to provide evidence as to whether the claimant could fall within the terms of paragraph 5(c).  This provides that where a woman becomes entitled to a retirement pension immediately following the payment to her husband of an increase of retirement pension in respect of her, the retirement pension to which she becomes entitled shall be payable on the same days as those upon which the retirement pension of the husband is payable.  In a written submission in reply dated 15 November 2001 the Secretary of State’s representative submitted that the provision did not apply on the facts of the present case because:-

	“The claimant’s husband did not reach retirement age until 12.11.00, accordingly he was not entitled to a retirement pension and increase of retirement pension in respect of her immediately prior to the claimant’s entitlement to retirement pension.”

Mr Seabrooke did not dispute these facts and agreed that that exception did not apply.  

9.	Mr Seabrooke argued that the exception contained in paragraph 5(d) applied, or should apply, on the facts of the present case.  This provides:-

	“	(d)	The Secretary of State may, notwithstanding anything contained in the foregoing provisions of this paragraph, arrange for retirement pension to be payable on such other day of the week as he may in any particular case determine;”

10.	Mr Chang rightly submitted that the above quoted exception did not apply because the Secretary of State had made no determination that the retirement pension should be payable on an alternative days.  In decision CP/16974/1996 the position was described as follows:-

	“.. the only way that the claimant can raise this issue is to apply for a formal determination by the Secretary of State and, if he considers that the Secretary of State has misinterpreted this exception, to apply for a judicial review of the decision.  Unless and until the Secretary of State gives a determination under this exception, it cannot help the claimant.  The determination by the Secretary of State is not a matter over which a Commissioner has jurisdiction. 

11.	Paragraph 5(e) provides that once a day has become the day on which a benefit is paid, that day remains the date of payment.  This would only apply in this case if the day on which the claimant’s retirement pension was payable was set as some day other than a Monday.  There is no provision under which this could be done.

12.	As none of the exceptions contained in paragraph 5 of Schedule 6 to the Regulations applied, the benefit week for the claimant’s retirement pension began on a Monday.  Mr Seabrooke contended that there was a breach of natural justice because the benefit pay day was determined purely by reference to the administrative convenience of the Department.  This is not correct.  The award made to the claimant was precisely in accordance with the provisions of the regulations.  The effect of the regulations was not merely to make the claimant’s pension payable from 7 June 1999, but to make it commence from 7 June 1999.  On the face of it this would appear contrary to the provisions of section 44(1) of the Social Security Contributions and Benefits Act 1992.  However, section 44(2) relates payability to a date on which entitlement is “to be regarded as commencing [my underlining] for that purpose by virtue of section 5(1)(k) of the Administration Act” and section 5(1)(k) authorises regulations to be made for adjusting the commencement of benefit. This is what regulations 16(3)(c) and 22(3) of the Claims and Payments Regulations have done. 

13.	In support of his claim Mr Seabrook referred me to a case where a claimant and his wife had successfully appealed to a tribunal in cases identical to that of the claimant.  Such arguments are frequently put forward but cannot assist the claimant.  In R(U) 3/74 the Commissioner stated at paragraph 7:-

	“.. a comparison of the instant case with another case gets the claimant nowhere.  In the field of law where many millions of claims are made each year, there are bound to be mistakes somewhere.  Even therefore where it is shown that the two cases were exactly similar the difference between them merely proves or suggests that something has gone wrong but it does not prove what.”

The fact that there might have been a mistake in the application of the law, does not mean that such a mistake should be perpetuated.

14.	For the reasons stated above the tribunal’s decision was not erroneous in law.  The findings of fact were supported by the evidence and the tribunal applied the law correctly to those findings.  I am aware that the claimant regards a conclusion of this nature as a clear breach of social justice.  Although I have sympathy with the claimant, my jurisdiction is limited to the interpretation of the legislation as currently enacted.    

15.	Mr Seabrooke submitted in evidence a letter dated 28 February 2001 from his member of Parliament Mrs Diana Organ.  She said:-

	“I write in support of the above appeal lodged by [the claimant] who is concerned that she has been denied several days of her State pension.

	[The claimant] reached her qualifying birthday on 3 June 99 .. [the claimant] maintains that she is owed 4 days State pension.

	Whilst I understand that this is the system employed by the Department of Social Security in meeting the claimant’s State pension .. it seems only fair that a claimant’s pension should be payable from the date of their qualifying birthday.”

If it is thought that an injustice is done by the above construction then it is for Parliament and Parliament alone to make the appropriate alterations to the relevant statutory provisions.  I have no power to amend them or apply them in an arbitrary way.

16.	The claimant’s appeal is dismissed. 

					(Signed)	Mrs R F M Heggs
							Commissioner

					(Date)		23 January 2002