CPC/3396/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.  My decision is that the decision of the tribunal is not erroneous in point of law.  I therefore dismiss the appeal.

2.  Section 123 of the Immigration and Asylum Act 1999 provided for regulations to be made which allowed means tested benefits to be paid retrospectively to asylum seekers who were found to be refugees within Article 1 of the Geneva Convention relating to the Status of Refugees. Such regulations were made in relation to income support, housing and council tax benefit, child benefit and tax credits (under section 42 of the Tax Credits Act 2002), although section 123 was repealed from 14 June 2007 by section 12(2)(a)(i) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.  However, no regulations were made under section 123 in relation to state pension credit, which from 6 October 2003 replaced income support as the means tested benefit of last resort for persons aged 60 and over.  The question in this appeal is whether, notwithstanding the absence of any such regulations relating to state pension credit, Article 14 of the European Convention on Human Rights, when read with Article 1 of Protocol 1 of the Convention, entitled the claimant as a successful asylum seeker aged over 60 to have her award of state pension credit backdated to the date when she made her claim for asylum.  I held an oral hearing of the appeal on 9 October 2007, attended by Mr Martin Williams of London Advice Services Alliance on behalf of the claimant, and Ms. Gillian Jackson on behalf of the Secretary of State.

3.  The claimant was born on 25 March 1942 and is a national of Afghanistan.  She applied for asylum on 29 June 2004 and was notified that she had been recorded as a refugee on 10 January 2006.  She claimed state pension credit on 7 February 2006, but in a letter written on her behalf dated 30 January 2006 she applied for any award of income support or state pension credit to be backdated to the date of her asylum claim.  Because she made her claim within 28 days of the notification that she had been recorded as a refugee, the claimant would have been entitled under regulation 21ZB of the Income Support (General) Regulations 1987  to an award of benefit, less support payments, backdated to the date of her asylum claim if her claim had been for income support.  However, on 13 February 2006 the claimant was advised that there was no provision similar to regulation 21ZB relating to state pension credit, and on 20 February 2006 she was awarded state pension credit only from 12 January 2006.  The claimant appealed against the refusal to backdate the award to the date of her asylum application, and it is against the decision of the tribunal upholding that decision that the claimant, with leave granted by a district chairman, now brings this further appeal.

4.  Before considering the human rights issues, it is necessary to deal with an argument raised on behalf of the claimant prior to the hearing, to the effect that that the claim for state pension credit should have been treated as a claim for income support.  However, as I pointed out in R(IS) 4/07, a claim for one benefit can only be treated as a claim for a different benefit if the claims are specified as being interchangeable by Schedule 1 to the Social Security (Claims and Payments) Regulations 1987.  The Schedule does not specify any claim as interchangeable with a claim for state pension credit, but in any case, as the Secretary of  State’s representative pointed out in his submission of 20 December 2006, section 124(1)(a) of the Social Security Contributions and Benefits Act 1992 excludes a person who has attained the qualifying age for state pension credit from entitlement to income support.

5.   The claimant did not advance any human rights arguments before the tribunal, but relied on the European Court of Justice case of Mangold v Helm (C-144/04) as laying down a general principle of Community law prohibiting discrimination on grounds of age.  However, in response to my direction asking for observations on whether this appeal should be stayed pending the outcome of Palacios de la Villa (C411/05), the claimant’s representative accepted in a letter dated 13 February 2007 that in the light of  Gingi v Secretary of State for Work and Pensions [2001] EWCA Civ 1685 (also reported as R(IS 5/02) this case could not be said to be governed by the Community legal order.  The representative indicated that the claimant would instead rely exclusively on human rights arguments.

6.  Those arguments ranged over what has become familiar territory.  Article 14 of the European Convention on Human Rights prohibits discrimination in relation to rights falling within the scope of any other Convention article on the grounds of “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”, and there can be little doubt that discrimination on age grounds falls within the Article.  In its admissibility decision in  Stec v United Kingdom (Apps. 67531/01 and 65900/01) the Grand Chamber of the ECHR held that contributory and non-contributory benefits are both within the scope of Article 1 of Protocol 1 (“A1P1”), so that a legally enforceable right to any benefit under domestic law must not discriminate on any ground prohibited by Article 14, even if the right to the benefit concerned has been conferred voluntarily.  However, before Stec was decided, the Court of Appeal held in Carson and Reynolds v Secretary of State for Work and Pensions [2003] EWCA Civ 797, [2003] 3 All ER 577  that only contributory benefits were within the scope of A1P1.  Carson and Reynolds was followed by the Court of Appeal in Campbell and others v South Nottinghamshire District Council  [2004] EWCA Civ 409, reported as (R(H) 8/04); and in Esfandiari v Secretary of State for Work and Pensions [2006] EWCA Civ 282, reported as R(IS) 11/06, the Court of Appeal expressed the view that the ECHR decision in Stec was inconsistent with other Strasbourg jurisprudence.

7.  Section 2 of the Human Rights Act 1998 requires a court or tribunal to “take into account” any judgment or decision of the ECHR, but in Kay v Lambeth LBC, Leeds CC v Price [2006] UKHL 10, [2006] 2 WLR 570 the House of Lords held (per Lord Bingham) that, faced with a conflict between ECHR and domestic authorities, domestic rules of precedent should be followed unless there were exceptional circumstances, such as those in D v East Berkshire Community NHS Trust, [2004] QB 258, in which the Court of Appeal considered that an earlier decision of the House of Lords could not survive the introduction of the Human Rights Act 1998.  In Couronne v Crawley Borough Council [2006] EWEWHC 514 (Admin) Bennett J. applied Kay in holding that, notwithstanding Stec, housing benefit and income-based jobseeker’s allowance did not fall within the ambit of A1P1.

8.  Mr Williams submitted that there were exceptional circumstances in this case which entitled me not to follow Carson and Reynolds and to hold instead, in accordance with the admissibility decision in Stec, that entitlement to state pension credits falls within the ambit of A1P1.  In his written observations, he submitted that the House of Lords in Carson and Reynolds had expressly left open the question of whether non-contributory benefits fell within the ambit of A1 P1 pending the decision in Stec, and that the House should therefore be taken to have been content to have that issue decided by the ECHR.  In the alternative, Mr Williams submitted that state pension credit can be distinguished from those benefits which have been held not to be within the scope of A1P1 because the savings credit element in state pension credit makes it similar to a contributory benefit.

9.  I cannot accept those submissions.  Although Mr Williams submitted that I was not bound by Campbell or Couronne, I am clearly bound by Kay to follow Campbell unless this case falls within the rare category of exceptions to the principle that the ordinary domestic rules of precedent should be followed in human rights cases.  In Couronne Bennett J. did not find any exceptional reasons for not following the Court of Appeal decisions in Carson and Reynolds and Campbell, and in the light of those authorities I do not consider that the fact that the House of Lords in Carson and Reynolds left open the question of whether non-contributory benefits fall within the scope of A1P1 justifies me in not following the Court of Appeal in Carson and Reynolds and Campbell.  So far as the savings credit argument is concerned, the supplement provided for by section 3 of the State Pension Credit Act 2002 is payable to pensioners who have private pensions or similar income resulting from their own savings, and in my view is therefore not in any way analogous to benefit entitlement which is dependant on contributions.

10.  The hearing of this appeal took place after the Court of Appeal had given judgment in R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614, and much of the argument at the hearing before me was concerned with whether a concession made on behalf of the Secretary of State in RJM  constituted an exceptional reason for not following Carson and Reynolds.  Income support claimants who have no accommodation are not entitled to receive a disability premium, and the issue in RJM was whether that exclusion contravenes article 14, read in conjunction with A1P1.  The Secretary of State made a concession with regard to A1P1, which the Court of Appeal recorded in the judgment of Sir Anthony Clarke MR as follows:

“23.  The Secretary of State makes this limited concession in paragraph 20 of the supplementary note:

“20.  In these circumstances, for the purposes of RJM’s claim, which does involve a non-contributory welfare benefit, and where it is accepted that the Appellant falls within the general social purpose and intendment of the Income Support scheme, it is accepted that pursuant to Stec his case falls within the ambit of A1 P1.  The Secretary of State therefore accepts that RJM’s case falls within the ambit of A1 P1, if the Court of Appeal does not feel itself bound by Campbell.”

24.  Ms.  Lieven made it clear that that was the limit of the secretary of State’s concession.  Moreover, she has also made it clear that, if the matter proceeded to the House of Lords, the Secretary of State would concede that was the position.  She conceded, in my judgment correctly, that RJM had a relevant possession within the meaning of A1 P1 on the facts of the case.  That was the very concession which the Secretary of State in effect made before the judge because he did not argue to the contrary.  In any event it appears to me that it must be open to the Secretary of State to make the concession that RJM has a relevant possession both before the judge and before us, whether or not, but for such a concession, we would be bound to decide otherwise.  This is particularly in circumstances where the Secretary of State would make the same concession before the House of Lords.”

11.  Mr Williams submitted that the Secretary of State’s concession in RJM added to the uncertainty concerning the position of non-contributory benefits in relation to A1P1 and that I should therefore now follow Stec, particularly since this case is concerned with provisions which were enacted in order to comply with international treaty obligations.  I have considerable sympathy with that submission, since it seems to me to be unsatisfactory for a concession to be made on an important point of principle in a social security case if the effect of  the concession in other cases is unclear.  In social security law, harmony across the system is important-see the observations of Hale LJ in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, reported as R(DLA) 6/01.

12.  I have however come to the conclusion that it is not necessary for me to decide whether to follow Stec, since in my view there is no effective remedy which I could give the claimant even if  I were to decide that the lack of any state pension credit provision corresponding to regulation 21ZB of the Income Support (General) Regulations 1987 was in breach of  Article 14, read with A1 P1.  Mr Williams submitted that, in accordance with the approach to section 3 of the Human Rights Act 1998 taken by the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 A.C. 557, I should interpret regulation 21ZB of the Income Support (General) Regulations 1987 as applying to state pension credit.

14.   Section 123(9) of the Immigration and Asylum Act 1999 Act provided for the regulation making power conferred by the section to be exercised in relation to “regulations made by the Secretary of State under the (Social Security Contributions and Benefits Act 1992) or the Social Security Administration Act or the State Pension Credit Act 2002” (my emphasis).  Section 3 of the Human Rights Act 1998 requires that “so far as it is possible to do so, primary and secondary legislation must be read and given effect to in a way which is compatible with the Convention rights”, but in R v Lambert [2001] UKHL 37, [2001] 3 WLR 206 (at para. 79) Lord Hope held that resort to section 3 of the Human Rights Act will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible with the Convention, and in Ghaidan Lord Nicholls held (at para. 33) that it cannot have been intended that in the discharge of the extended interpretative function conferred by section 3 the courts should adopt a meaning inconsistent with a fundamental feature of the legislation.  Since section 123 expressly provided for the regulation making power which it created to be exercised in relation to state pension credit by regulations made under the State Pension Credit Act 2002,  I do not consider that it is possible to interpret the section as also empowering the Income Support (General) Regulations 1987 to make provision for awards of state pension credit to  be backdated.  Although the power existed to make provision for backdated awards of state pension credit for refugees, it was never exercised, and I agree with Ms. Jackson that for me to interpret section 123 of the 1999 Act as if the power had been exercised would an improper incursion across the boundary between interpretation and legislation. 
 
14.  Although I directed a submission on the justification for the difference in treatment between income support claimants and state pension credit claimants in relation to the backdating of awards to successful asylum seekers, in view of the conclusion I have reached it is not necessary to consider that issue.

15.  For those reasons, my decision is as set out in paragraph 1.    

	(signed on the original)	E A L Bano
		Commissioner

		3 April 2008