England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday, 16th May 2001

Wednesday, 16th May 2001

1. LORD JUSTICE LONGMORE: Mr Cockeram appears before the Court this morning seeking permission to appeal on what he asserts is a point of law from the decision of Mr Howell, the Social Security Commissioner, dated partly 1st June 2000 and partly 13th July 2000.
2. The reason why the Social Security Commissioner declined to deal with Mr Cockeram's claim was that the complaints in relation to the reduction of availability of the reduced earnings allowance had after some considerable time been taken to the European Court on the grounds that inter alia the effect of them was to discriminate against men and in favour of women and did not come within, what I will call broadly the pension exception, where such discrimination is under European law permissible. The European Court has decided that the pension exception was applicable.
3. In the light of that decision Mr Howell thereafter dismissed a number of claims. What Mr Cockeram says is that the individual facts of his claim have not been properly considered. There are two features of his application which, as it seems to me, may merit further consideration and, therefore, I am going to make an order that he renews his application for permission to appeal before the full Court with the Social Security Commissioners being represented so that there can be then an argument as to whether permission to appeal should be granted. I will also order that, if permission is granted, the appeal is then to be heard.
4. The two matters on which Mr Cockeram relies, and he will forgive me if I put them a bit more in lawyers' language than he acting for himself is able to do, are these; first the new regulations which (insofar as I understand the matter, and of course Mr Cockeram has not been able to give me very much assistance himself) are the Social Security Industrial Injuries of Diseases (Miscellaneous Amendments) Regulations of 1996 need to be considered. Paragraph 6 of those regulations refers to the Social Security (Industrial Injuries) (Regular Employment) Regulations of 1990, and substitutes a different meaning for "regular employment" than that which appeared in the 1990 Regulations. In addition to that, subparagraph (3) of paragraph 6 also provides that:

"A person who has attained pensionable age shall be regarded as having given up regular employment at the start of the first week in which he is not in regular employment after the length of

(a) the week during which this regulation comes into force, or

(b) the week during which he attains pensionable age."

5. It seems to me that may arguably have the effect of purporting to amend by regulation the provisions of paragraph 13 of Schedule 7 of the Social Security Contributions and Benefits Act 1992. Not surprisingly Mr Cockeram cannot tell me whether or not there is statutory power to amend by regulation what is provided in an Act of Parliament, and of course it is perfectly possible that in my own ignorance I have completely misunderstood the position. Nevertheless, it does seem to me that it is proper to request counsel for the Social Security Commissioners to come to Court and explain what the position is about that as a matter of law.
6. The second matter, and understandably Mr Cockeram has put more emphasis on this, is that he submits that he made specific enquiries about the extent to which the reduced earnings allowance, to which he was entitled, would continue after he retired. On 5th October 1987, the Department of Health and Social Security said that payments by way of reduced earnings allowance will continue to be paid even after age 65 if the conditions of benefit are still met. Retirement pension payments would not affect any reduced earnings allowance awards.
7. Mr Cockeram says that it was in reliance on that letter that he retired in 1987, making way, nobly as it might be said, for someone who was unemployed in order to take his job, and yet now he finds that what he submits is the promise made in that letter is not being performed. Once again, it does seem to me that there is something which can be arguably said in his favour which justifies my decision to permit him to renew his application to the full Court in the way I have described.
8. I direct that my remarks be transcribed and sent to Mr Cockeram at public expense in the hope that with the benefit of them he may be able to obtain either Legal Aid or some advice from the Citizens Advice Bureau in the matter so that he might be able to be represented by someone who knows a bit more about the law than Mr Cockeram does in this field for the purpose of the renewed application. Even if that does not happen, there will at least be counsel available to assist the Court on the matters of law, in order to see whether permission to appeal ought to be granted.
(Application allowed; transcript to be provided to Mr Cockeram at public expense)