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 COMMISSION
(MR S J PACEY)

		Royal Courts of Justice Strand London WC2 Thursday, 10th May 2001

1. LADY JUSTICE ARDEN: This is a renewed application by Mrs Carmen Roberts for permission to appeal from the decision of Commissioner Pacey dated 8th June 2000. By his order the commissioner allowed the Secretary of State's appeal from the decision of the Social Security Appeal Tribunal of 11th March 1998 and directed that the weekly rates of widows' pensions payable to the claimant should be subject to a weekly reduction of seven per cent pursuant to section 39(4) of the Contributions and Benefits Act 1992 ("the 1992 Act").
2. This application was refused on paper by Brooke LJ who said in his reasons:

"I see no real prospect of success. The facts before the Social Security Appeal Tribunal shows that Mr Roberts died between 10.50 pm and midnight on 26th June 1997. On those facts, it appears to me that the Commissioner's decision on the law was clearly right.

If the appellant wishes to place new material facts before the social security authorities she should take advantage of the procedures afforded to her for this purpose. It would be inappropriate to adduce new factual evidence for the first time before the Court of Appeal."

3. On this renewed application Mr Paul Stagg has appeared for Mrs Roberts, and I have been referred to a skeleton argument which he has lodged and the authorities referred to in it.
4. I now turn to the background. Mrs Roberts was born on 27th June 1942 in the Philippines. Her husband died on 26th June 1997. The 1992 Act provides for a reduction of seven per cent in the amount of benefits of each year or part of the year that a widow is under the age of 55 years of age at the date of her husband's death. The precise wording is as follows:

"Where a widow's pension is payable to a woman who was under the age of 55 at the time when the applicable qualifying condition was fulfilled, the weekly rate of the pension shall be reduced by 7 per cent, of what it would be apart from this subsection multiplied by the number of years by which her age at that time was less than 55 (any fraction of a year being counted as a year)."

5. Mr Roberts died shortly after 10.50 pm on 26th June 1997. The question then is whether the applicant's 55th birthday was due to commence at midnight on 26th June 1997, ie, shortly after her husband's birthday or started at an earlier date. Section 173 of the 1992 Act provides that:

"For the purposes of the Act... and in Scotland (as well in England and Wales) the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of his birth."

6. Thus, the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of birth. The commissioner held that section 173 lays down a clearly ascertainable mechanism to determine when a person attains a particular age.
7. Mr Paul Stagg for the applicant has made two main submissions. His first is based on the de minimis principle and his second on the time when Mrs Roberts was born. Taking the first submission first, Mr Stagg submits that the de minimis maxim applies unless the contrary intention appears. He referred me to the decision of the Social Security Commission in CIB/5295/1997 on a question of the construction of Regulation 16(2) of the Social Security (Incapacity for Work)(General) Regulations 1995. This provides that:

"Work to which this regulation applies is any work which a person does whether or not she undertakes it in expectation of payment, apart from care of a relative or domestic tasks carried out in her own home."

8. The Social Security Commissioner was asked to apply the de minimis principle to this definition of "work". He held that it was applicable, and in paragraph 9 he said:

"The name 'de minimis' comes from the Latin tag 'de minimis non curat lex' -- the law does not care about minimal things or, as the Guide puts it, the law is not concerned with trivialities. This has for centuries past been regarded as a principle of interpretation or application of the law, and has been used as such by the highest courts (see Bennion, Statutory Incorporate Interpretation, 3rd edn, p 868 and authorities cited there). It applies in principle to any exercise of statutory interpretation or application unless it is clear from the context that a stricter approach is to be applied. There is, in my view, no such indication in regulation 16 or its context, and the tribunal is therefore wrong in stating that it does not apply."

9. The way the Social Security Commissioner puts it there is that the de minimis principle applies "unless it is clear from the context that a stricter approach is to be applied".
10. However, when one goes to Bennion's Statutory Interpretation, Bennion puts the matter thus (see page 868 of the words cited by the Commissioner):

"Unless the contrary intention appears an enactment by implication imports the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters)."

11. Mr Stagg also refers me to the principle in section 397(1) of Bennion at page 979 which provides as follows:

"Where the facts of the instant case substantially though not entirely correspond to a description in the relative enactment, it is presumed that the enactment is intended to apply in the same way as it would if they did entirely correspond."

12. Mr Stagg submits that Mrs Roberts was substantially 55 years old and therefore she should be treated as if she had attained that age. He submits that section 173 is not inconsistent with that maxim and he also submits the same in relation to section 9 of the Family Law Reform Act 1969 should that be applicable. Section 9(1) of that Act provides:

"The time at which a person attains a particular age expressed in years shall be the commencement of the relevant anniversary of the date of his birth."

13. Thus, for today's purposes is the same as relevant part of the section 173, and as section 173 is specifically included I do not think that Mr Stagg need be troubled by section 9 of the 1969 Act.
14. What is clear from the principles which Mr Stagg relies on is that they are only presumptions and that they must give way to the wording of a particular statute and of course the Court must give effect to the wording of a particular statute. In this particular instance section 39(4) of the 1992 Act contains a specific provision that fractions of a year are to be counted as a year. Under section 39(4) the number of years by which Mrs Roberts' age was less than 55, are to be treated as including any fraction of a year, which is to be counted as a full year. Accordingly even though the difference in Mrs Roberts' age from the age of 55 was less than a year, the wording would, on the face of it, require it to be treated as a year.
15. The question which Mr Stagg raises is whether or not there is an exception in that phrase for a small fraction of a year. The subsection does not say "any fraction whatsoever". On the other hand, this is a specific provision. It is stated without any exceptions. It seems to me that there would be very little prospect of establishing on appeal that it was merely a direction requirement or a requirement which was subject to qualifications. A wording is expressed, it is a mandatory provision. Thus it would be sufficient to displace the maxim referred to in Bennion. Therefore, I do not think there is any real prospect of success on that issue.
16. I go then to the second submission which Mr Stagg made. He fairly accepted that he had to show an error in law and that there would be a difficulty in that argument if he did not receive permission with respect to the first ground on which he relies. However, I will go on to deal with it as an entirely separate matter. There is some difficulty here because, while it appears that the Social Security Appeal Tribunal knew that Mrs Roberts was born in the Philippines, the evidence as to the time of the day at which she was born was not before the tribunal. There is some doubt about that, and certainly the Commissioner does not deal with the point. What is said as to his failure to investigate and deal with it does gives rise to an error in law. That would be so, it seems to me, if the point were a good one in law, and it is to that point that I now turn.
17. The further evidence lodged on this appeal shows that Mrs Roberts' evidence is that she was born in the early hours of 27th June in the Philippines. Of course the Philippines is some seven or eight hours ahead of Greenwich mean time. The way Mr Stagg puts this is attractive. He says that the date, for English law purposes, on which Mrs Roberts was actually born is between midnight on the 25th and midnight on the 26th because the date on which she was born actually commenced before the relevant date in the United Kingdom. He goes on to argue that on that basis then she must be taken to have been born on the 26th, namely on the same date as her husband died, and that the commencement of that date was the start of the 26th, that is before her husband's death. In this regard Mr Stagg has to deal with section 9 of the Interpretation Act 1978. The heading is References to time of day and it provides as follows:

"Subject to section 3 of the Summer Time Act 1972 (construction of references to points of time during the period of summer time), whenever an expression of time occurs in an Act, the time referred to shall, unless it is otherwise specifically stated, be held to be Greenwich mean time."

18. The argument that Mr Stagg advanced involves saying that the date of the birth was actually the 26th, and by arguing from that that by applying Philippines time and comparing it with Greenwich mean time the time of replacement of the anniversary is before the 27th. He distinguishes an authority of the Divisional Court in Logan where a piece of legislation related to army discipline in relation to criminal offences came into force in Hong Kong at a time which was earlier than in the United Kingdom because the relevant date started before the date started in the United Kingdom. There was, however, no reference in that decision to section 9 or its predecessors, and Mr Stagg submits that it was distinguishable in any event because the Act in question had a territorial effect. I put on one side the Logan case and do not regard it as a case which is in any event conclusive against the applicant in this case.
19. But that still leaves the problem of section 9 of the Interpretation Act. References to time are to be held to be Greenwich mean time, and that is a rule which applies whenever an expression of time is used in an act, and any exclusion has to be otherwise specifically stated. It seems to me that it would not be possible to argue that the date of the birth was anything other than 27th June, whether the birth occurred here or elsewhere. Under section 173, she attains the relevant age that her birth date starts at the commencement of her 55th birthday. In that respect then section 9 has the effect, it seems to me, of saying that Greenwich mean time must be applied to establish the commencement of her birthday irrespective of whether her birth took place here or not. In my opinion there is no prospect of success in the argument that her birth date commenced at some other date for the purposes of section 39(4).
20. Having considered Mr Stagg's careful and cogent arguments, I must dismiss the application.
(Application for permission to appeal refused; legal aid assessment)