CP 3143 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I allow the appeal.

2	The Secretary of State is appealing with permission of a Commissioner against the decision of the Taunton appeal tribunal on 1 March 2002 under reference U 03 206 2001 00509.

3	For the reasons below, the decision of the tribunal is set aside. With the agreement of both parties, I take the decision that the tribunal should have taken. This is:

Appeal allowed. The decision of the Secretary of State of  23 April 2001 is set aside. The case is referred to the Secretary of State to reconsider and if necessary decide the claimant’s claims for Category A and Category B retirement pension. 

The  reference to the Secretary of State is made with the agreement of both parties following an oral hearing of this appeal held by me at Cardiff Civil Justice Centre on 7 July 2003. The claimant was represented at the hearing by her husband and the Secretary of State by Mr V Lewis of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both for their assistance at the hearing.

4	The claimant has been entitled to a Category A retirement pension since 1991. She contended that she is entitled to whichever of  Category A and Category B (or both)  gives her the greater entitlement from her husband’s 65th birthday on 11 February 1995. The Secretary of State’s answer was that she did not make the necessary claim to get her pension increased in 1995. The decision of the tribunal was a complex one. It rejected the decision of the Secretary of State and substituted for it a decision that the claimant was entitled to a Category B pension in substitution for her Category A pension with effect from 11 February 1995. Alternatively, she was entitled to an enhanced  Category A pension from 11 February 1995. The tribunal gave full reasons. These included the view that Category A pensions and Category B pensions were part of the same pension and not separate. 

5	The Secretary of State based the grounds of appeal in part on my decision CP 3632 2001 to the effect that the primary legislation makes clear that the Category A retirement pension and the Category B retirement pension are in law separate pensions. But the Secretary of State disagreed with another aspect of that decision - to the effect that only one claim needed to be made for both pensions - and appealed that aspect to the Court of Appeal. In Secretary of State for Work and Pensions v Nelligan [2003] EWCA Civ 555, 15 April 2003, the Court of Appeal upheld the appeal and overruled that aspect of CP 3632 2001. It is clear therefore that claims must be made for any Category A pension separate from any Category B pension. The decision of the tribunal is wrong in law and must be set aside.   

6	But that does not reinstate the decision of the Secretary of State. The relevant part of that decision was that:

The claimant is only entitled to a Category ABL retirement pension at the weekly rate of £83.54 from… This is because the claim for that category of retirement pension … was not made within the time limit for claiming… 

As I indicated at the oral hearing, that decision cannot stand and the tribunal was right to strike it down. The point is made by the tribunal chairman:

“I must note at the outset that I found the respondent’s written submission difficult because it refers to “a Category ABL Retirement Pension” throughout and I can find no trace of such a benefit in the precedent or the legislation. It seems to be a term internal to the respondent’s department and is used in a paper called The Definition of Pensioner Units The Pensioners’ Income Series Methodological Paper No 7 November 2001...
There is no such thing as a Category ABL Retirement Pension and the appellant cannot accordingly be entitled to it.”

7	I entirely endorse that conclusion.  There are Category A retirement pensions and Category B retirement pensions. The introduction of what appears to be departmental jargon into the formal decision is wrong in both principle and practice. It fails to make clear which of the two categories was relevant to the decision and therefore leaves it unclear and ambiguous. (And, so far as relevant, I see nothing in the Decision Makers Guide explaining the point .) If both pensions have been claimed, there must be a decision or decisions about Category A pension rights of the claimant and a separate decision or decisions about the Category B rights together, if then necessary, with a decision about the interaction caused by any double entitlement.  While this may not have been clear at the time of the tribunal hearing, it follows from the decision of the Court of Appeal in Nelligan read with section 8(1)(a) of the Social Security Act 1998. The current decision conflates both issues and decides neither. Indeed, I am not sure what the Secretary of State has so far decided. The only satisfactory approach is to set aside this obviously erroneous decision and refer the matter back to the Secretary of State to identify or make the necessary separate decisions.  The claimant will have rights of appeal from notification of any decisions. 

8	Separately, the claimant sought to challenge the decision in Nelligan because it infringed her human rights to her full entitlement to pension under Article 1 of Protocol 1 to the European Convention on Human Rights read with Article 8 and Article 14 of that Convention. This was not argued before the Court of Appeal. Mr Lewis accepted for the Secretary of State that Convention rights may be engaged but argued strongly that none were infringed on the arguments put before me or the tribunal. I record that in so arguing he relied on Willis v UK (application 36042/97) and Coke and another v UK (application 38696/97). He also argued that, in any event, if any discrimination occurred it could not be remedied by a Commissioner under the Human Rights Act 1998.  I record the human rights arguments but do not decide them as I consider the matter to be premature at this stage.  So far, the proper decisions have not been identified or taken. And the matter may be open to non-judicial resolution as indicated in the next paragraph. 

9	The claimant and her husband claimed common ground with Nelligan in that, as in that case, they were not sent the relevant forms or alerted to the need to make a separate claim to increase her entitlement when he reached pensionable age.  Mr Lewis indicated that there might be grounds for the Secretary of State to consider this matter on an ex gratia basis on the particular facts of the case. That is, however, not for me. I refer it to the Secretary of State for consideration along with the claim under appeal.      

									David Williams
									Commissioner
									06 August 2003
[Signed on the original on the date shown]