England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY COMMISSIONERS

		Royal Courts of Justice Strand London WC2 Wednesday 17th October, 2001

1. LORD JUSTICE SCHIEMANN: This an application for permission to appeal from a decision of the Social Security Commissioners in relation to a reduced earnings allowance award. The applicant was entitled to reduced earnings allowance, but under the regulations which currently apply he is not so entitled.
2. Mr Stagg argues that the Secretary of State was at fault in placing before Parliament draft regulations, the effect of which is to remove from Mr Cockeram (and many others in his situation) the right to reduced earnings allowance for life, without bearing in mind a letter which had been written by a manager in the Department of Health and Social Security on 5th October 1987 to Mr Cockeram. It appears that Mr Cockeram had asked at that time whether his reduced earnings allowance award, which he then enjoyed, would be affected in any way if he chose to take early retirement, effectively, under a scheme known as job release allowance which gave him a certain amount of immediate capital in return for leaving his job and freeing it for someone else.
3. Mr Cockeram received this reply on 5th October:

"Your Reduced Earnings Allowance award would not be affected in any way if you choose to take Job Release Allowance. Payments of £25.80 per week Reduced Earnings Allowance will continue to be paid, even after age 65, if the conditions for the benefit are still met. Retirement Pension payments will not affect any Reduced Earnings Allowance awards."

4. One may assume at this stage that Mr Cockeram said to himself: "Well, bearing in mind that reduced earnings allowance will continue to be paid at this rate I can take early retirement, take the money released by job release allowance and in those circumstances I will retire." This is what he did. The result of early retirement is, firstly, that he was deprived of the income he would have received during the next few years before he reached retirement age and, secondly, that his pension was correspondingly reduced because he had not worked the full number of years. Parliament thereafter, in allowing the draft regulations which were before it to come into law under the negative resolution procedure, has enacted legislation which has the effect (as everyone agrees) of depriving him of reduced earnings allowance and everyone else in his position.
5. Mr Cockeram seeks to arrive at a situation whereby reduced earnings allowance continues to be paid to him, either in that form, one imagines, or in some form of damages. The Secretary of State takes the position that he can only pay that which Parliament has authorised in the regulations.
6. Having given the matter some thought, although I recognise that the law of legitimate expectation is, to a degree, fluid, it does not seem to me that the position of Mr Cockeram is one where he can be said to have a real prospect of success in this litigation. The citizen must realise that Parliament is in a position to alter the payments made under various social security schemes, and this letter of 8th October 1987 should have been read with that basic proposition in mind. Indeed, it can be said - and it is said on behalf of the Secretary of State - that the words "if the conditions for the benefit are still met" refer to whatever conditions are in force at the appropriate time. Benefits come and benefits go, and the citizen sometimes loses out on them. Mr Cockeram has had, I think from everybody, a good deal of sympathy for his position because it was understandable he would take the view that he would continue to get reduced earnings allowance.
7. But, as it seems to me, there is nothing unlawful in the Secretary of State laying the appropriate draft regulations before Parliament. There was nothing unlawful in Parliament not activating its power under the negative resolution procedure to debate and challenge those regulations. The Secretary of State must have realised that some people would lose out. It may very well be that he did not have in mind the terms of this particular letter.
8. But bearing in mind the conflict between, on the one hand, the expectations of the individual and the public interest as seen by a minister and as apparently confirmed by Parliament, it does not seem to me that the facts of the present case are such that Mr Cockeram has a real prospect of success. In those circumstances, this application is refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)