UKSSCSC CS_49_1989 (27 June 1989)
Mrs. R. F. M. Heggs CS/49/1989
SDA - person over pensionable age - whether entitled to non-contributory invalidity pension immediately before reaching pensionable age notwithstanding that no claim had been made
The claimant was 65 on 22 May 1977. On 23 May 1988 he claimed SDA from 1 May 1988. It was accepted that his medical condition was such that he could have been entitled to NCIP since its introduction in 1975 and SDA which replaced NCIP in 1984. The adjudication officer decided that the claimant was not entitled to SDA because, at the date of claim, he had attained pensionable age. He could not be treated as entitled to NCIP before reaching that age because a claim for that benefit had never been made. And since 2 September 1985, when Section 165A of the 1975 Act came into force to limit the effect of the McCaffrey judgment, entitlement could not arise unless a valid claim was made. The claimant appealed to a tribunal who allowed his appeal. The adjudication officer appealed to the Commissioner.
- to be entitled to SDA, a person has to satisfy section 36(4)(d) of the 1975 Act. In this case the claimant had to show that he was entitled to NCIP on 21 May 1977, the day before he reached pensionable age;
- the effects of the House of Lords judgment in the case of Insurance Officer v. McCaffrey  1 All ER 5 made it possible for a person to be entitled to a benefit without having made a claim;
- the effect of section 165A of the Social Security Act 1975 was not retrospective in requiring a claim to be made before entitlement could arise and did not apply before 2 September 1985;
- because the claimant satisfied the conditions of entitlement for NCIP prior to 2 September 1985, he was entitled to NCIP on 21 May 1977 in accordance with the Court of Appeal judgment in McCaffrey. As a result, the claimant was entitled to payment of SDA from 1 May 1988.
NB. Section 165B of the 1975 Act came into force on 13 July 1990. It confirms the retrospective effect of section 165A to periods before 2 September 1985.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"1. [The claimant] was born on 22 May 1912. He reached retirement age (70) in 1982 and pension age 65 on 22 May 1977.
- [The claimant] has suffered considerable disability since childhood and has been incapable of work since 1965 because of the disability.
- In 1975 during a "take-up" campaign a visit was made by the local office to invite [the claimant] to apply for SDA.
- The information given to [the claimant] during the visit led him to mistakenly believe he would be financially worse off by some £2-£3 per week if awarded SDA.
- Between 1975 and 1988 despite [the claimant's wife's] considerable experience as a CAB worker nothing had led [the claimant] to believe there might be any advantage for him to claim SDA.
- On the evidence available to the tribunal [the claimant's] medical condition was such that he would have been entitled to SDA at any time since 1975 and in particular on 21 May 1977 the day before his 65th birthday and the preceding 196 days.
The reasons for decision, so far as relevant to the present appeal, read:
- On the evidence available to the tribunal [the claimant] would have been entitled to SDA immediately prior to his 65th birthday and his condition has only become worse since that date.
- The provisions of the acts and regulations set out in box 2 of the original form AT2 have been applied."
"36. (1) Subject to the provisions of this section, a person shall be entitled to a severe disablement allowance for any day ("the relevant day") if he satisfies -
(a) the condition specified in sub-section (2) below; or
(b) the conditions specified in sub-section (3) below.
(3) The conditions mentioned in sub-section (1)(b) above are that -
(a) on the relevant day he is both incapable of work and disabled; and
(b) he had been both incapable of work and disabled for a period of not less than 196 consecutive days ending immediately before the relevant day.
(4) A person shall not be entitled to a severe disablement allowance if-
(a)-(c) . . .(d) he has attained pensionable age and was not entitled to a severe disablement allowance immediately before he attained it and is not treated by regulations as having been so entitled immediately before he attained it.
(a) . . .
(5) A person is disabled for the purpose of this section if he suffers from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts to not less than 80 per cent.
(a) may direct that persons who-(i) have attained retiring age; and(ii) were entitled to a severe disablement allowance immediately before they attained it,shall continue to be so entitled notwithstanding that they do not satisfy the conditions specified in sub-section (2) or (3) above;
(b)-(d) . . .
(8) In this section-
" . . . . .
'retiring age' means in the case of a man, 70, and, in the case of a woman, 65."
Pensionable age is defined in section 27(1)(a) of the Act as "in the case of a man, the age of 65".
"A person who has attained pensionable age shall for the purposes of section 36(4)(d) of the Act be treated as having been entitled to a severe disablement allowance immediately before attaining that age if immediately before attaining it -
(a) he would have satisfied the conditions for entitlement to that allowance or to a non-contributory invalidity pension but for the provisions of the Social Security (Overlapping Benefits) Regulations 1979, or
(b) he was entitled to a non-contributory invalidity pension."
"A person who -
(a) has attained retiring age; and
(b) was entitled to a severe disablement allowance immediately before he attained that age,
shall continue to be so entitled notwithstanding that he does not satisfy the conditions specified in sub-section (2) or (3) of section 36 of the Act if he satisfies the other requirements for entitlement to such an allowance."
"165A. - (1) Except in such cases as may be prescribed, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied -
(a) he makes a claim for it in the prescribed manner and within the prescribed time; or
(b) by virtue of regulations made under section 51 of the Social Security Act 1986 he is treated as making a claim for it.
(2) Where under sub-section (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it -
(a) if the benefit is a widow's payment, she shall not be entitled to it in respect of a death occurring more than twelve months before the date on which the claim is made or treated as made; and
(b) if the benefit is any other benefit, except disablement benefit or reduced earnings allowance, the person shall not be entitled to it in respect of any period more than twelve months before that date."
Date: 27 June 1989 (signed) Mrs. R. F. M. Heggs Commissioner