CP 4104 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1	I grant permission to the claimant and applicant (Mrs J) and, with the consent of both parties, allow her appeal. For the reasons below, the decision of the tribunal is wrong in law. It is set aside. With the agreement of both parties, I replace that decision with the decision that the tribunal should have made. This is:

Appeal allowed.  The appellant is entitled to retirement pension on the basis of her own contribution record from the start of the first benefit week after her 60th birthday on 3 November 2000. I refer the matter to the Secretary of State to calculate the arrears of entitlement to be paid to the appellant. In calculating that entitlement, the Secretary of State is entitled to deduct any overpayment of pension resulting from the previously delayed start of the payment of her retirement pension. I draw the attention of the Secretary of State to the future level of entitlement of the appellant. If the parties cannot agree the sums due and to be offset they are at liberty to apply to me or another Commissioner to decide the matter. 

2	Mrs J is appealing against the decision of the Reading appeal tribunal on 22 June 2004 under reference U 04 175 2004 00452. I held an oral hearing of the application and appeal in London on 16 February 2004. Mr J represented his wife. The Secretary of State was represented by Mrs Sarah Haywood of the Office of the Solicitor to the Department for Work and Pensions. The parties consented at that hearing to my dealing with the appeal. I orally announced my decision and reasons. They agreed that I need only provide a summary decision in confirmation. 

3	The appeal concerns the repeated assertion by Mrs and Mr J that she claimed her retirement pension before her 60th birthday in November 2000. The Pension Service insisted that she had not claimed until 4 October 2002 (when she returned a form that was sent to her), and that therefore she could not receive her pension before 4 July 2002. That would be right in law if there were no claim before 4 October 2002. Mrs and Mr J maintained that this was not so and appealed to the tribunal. They had, Mr J told me, sent 64 letters and made 27 telephone calls but got nowhere. 

4	The formal submission to the tribunal from the secretary of state's representative stated that “There is no record held of any previous request for a claim form or enquiries about entitlement to Retirement Pension. “ I regret to record that that is simply wrong in fact and – whether innocently or otherwise – is also misleading. The papers also contain a computer screenprint of Mrs J’s claim history for retirement pension downloaded in the Department on 2 March 2004. It records among other items:

No : 03		
Claim : MAIN		
Type (RP)	
End date: 04/07/2000	
End Reason Type: NO TITLE

5	 I asked the secretary of state's representative to explain what this meant. I commend the promptness and integrity of the full reply given to me at the oral hearing from David Kendall, the Departmental officer who responded to my request. He confirmed that this showed that a claim for retirement pension had been made on 4 July 2000, that this was within the advance period allowed by law of a claimant’s retirement date, and that it was closed because on the information at that time Mrs J had not paid sufficient contributions to receive any state retirement pension. In his words, “I can think of no other reason for the relevant entry … the Pensions Service are unable to provide an alternative explanation.”  He also explained that since then Mrs J paid further voluntary NI contributions. The Inland Revenue accepted that they were sufficient to give her entitlement to a retirement pension. That entitlement was accepted as retrospective. It should be backdated to the first week of entitlement after her 60th birthday.    

6	 In contrast to this submission, the submission by Pension Service to the tribunal was both wrong and misleading. It is true that in a strictly literal sense there was no documentary evidence at the time of the submission about Mrs J’s claim in July 2000. But this was probably because normal Departmental practices at the time would result in Mrs J’s claim documents being destroyed 14 months after the claim was closed.  A full and accurate submission to the tribunal by the Pension Service would have mentioned this.  The submission should have said that the Department did not have any details in paper form of the claim, but that this was consistent with the Department ‘s policy to destroy such papers after a given period, and that the Pension Service was no longer able to indicate from its documentary records whether nor not there had been a claim. It should then have drawn the attention of the tribunal to the computer record. 

7	The tribunal drew from what the Pension Service actually said the finding that “No trace of any claim form prior to that of 4.10.04 has been found by the pension centre.” Even if the tribunal were correct in that finding, it obviously did not consider that that might be because of action of the Pension Service rather than inaction of Mrs J. The policy of systematic destruction of records makes it important that a tribunal both checks how long records are likely to have been kept and also any available computer records before reaching conclusions adverse to a claimant’s credibility about this kind of issue. In this case there was a “trace” and the tribunal missed it. The tribunal decision must be set aside.

8	 I am pleased that through Mr Kendall the record has now been set straight. Mrs J is entitled to receive arrears of her pension from the right date. But, as I explained at the hearing, the delayed start of her pension to July 2002 means that she received a little more each week in the pension she was paid than she would otherwise have done. She will therefore receive arrears. But the Secretary of State is entitled to deduct from them the weekly overpayments made. I do not have the details and with the agreement of both parties I refer the matter to the Secretary of State to sort the figures out. 

								David Williams
								Commissioner

								22 February 2005
[Signed on the original on the date shown]