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 THE SOCIAL SECURITY COMMISSIONERS

		Royal Courts of Justice Strand London, WC2
		17th July 2006

1. LORD JUSTICE LAWS: This is an application for permission to appeal against the decision of the Social Security Commissioner, Mr Lloyd-Davies, made on 4 April 2006. By that decision the Commissioner refused the applicant leave to appeal against the Commissioner's own earlier decision of 20 December 2005. On that occasion the Commissioner held that, by force of a decision of the House of Lords in a case named Hooper, the applicant's case was unarguable in the English courts. So the substantive decision sought to be challenged today is that of 20 December 2005.
2. Mr Cooper, the applicant, has appeared before me today in person and addressed me with great clarity and courtesy. The decision of 20 December 2005 explains the nature of the case very clearly and I can do no better than replicate it in its entirety. Mr Cooper is very familiar with it.

"1. My decision is that the decision of the tribunal held on 25 May 2004 is not erroneous in law. Accordingly I do not allow the claimant's appeal.

2. The claimant was widowed on 15 March 1994. He was entitled to child benefit in respect of his daughter R. He made a claim for widowed mother's allowance in April 1994, which was disallowed as he was not a woman. He then made a claim for widowed parent's allowance, following the introduction of bereavement benefit on 9 April 2001, and was awarded widowed parent's allowance. His entitlement to child benefit in respect of R ceased on 8 September 2003. A decision maker decided that the claimant was not longer to widowed parent's allowance with effect from 9 September 2003 on the grounds that the claimant was no longer in receipt of child benefit. The claimant appealed. He accepted that his widowed parent's allowance had to stop, but maintained that he should have been entitled to either a bereavement allowance or widow's pension from 9 September 2003. The tribunal disallowed his appeal. The claimant appeals with the leave of a chairman. The appeal is not supported by the Secretary of State.

3. As regards the claimant's claim to bereavement allowance, it is clear that this claim must fail. His wife died 7 years before 9 April 2001 (the starting date for the allowance) and more than 52 weeks had expired since the death of the claimant's wife (52 weeks is the maximum period for entitlement to bereavement allowance).

4. The claimant's principal argument is that a woman in similar circumstances to him, whose husband had died, would have been entitled to widowed mother's allowance from 1994 and on the termination of that allowance (when child benefit ceased to have been paid), would have been titled to widow's pension under section 38 of the Social Security Contributions and Benefits Act 1992, the provisions of which preserved entitlement to widow's pension to a widow whose husband died before 9 April 2001.

5. It is clear, as a matter of construction, that sections 36 to 38 of the 1992 Act which refer only to women whose husbands have died cannot be construed in a gender neutral way so as to extend entitlement to me: see the decision of the Court of Appeal in R (Hooper and Others) v. The Secretary of State for Work and Pensions (2003) 1 WLR 2623 at [26-28] (to be found at pages 72 and 73 of the case papers). That conclusion of the Court of Appeal was not challenged in the House of Lords -- see paragraph [86] of [2005] UKHL 29 (to be found at page 118 of the case papers). Since, for the reasons explained in my previous decision in CG/1895/2001 (to be found at page 68 of the case papers), the Commissioner is only concerned with questions of interpretation and cannot deal with wider issues which may arise under the Human Rights Act 1998 or otherwise, that is technically the end of the matter.

6. However, in fairness to the claimant I should go further. The House of Lords in Hooper found that the payment of widow's pension to widows but not widowers was objectively justified and did not breach Article 14 of the European Convention on Human Rights. It went further and held that the payment of widow's payment and widowed mother's allowance to women, but not to men, insofar as it breached the rights of widowers, was not unlawful under section 6(1) of the 1998 Act, because the application of that subsection was excluded by the defences under Section 6(2) of that Act. (The claimant should refer in particular to the Opinion of Lord Hoffmann).

7. It follows that the claimant's appeal before me must be dismissed".

3. It seems to me that the decision of their Lordships' House is inescapably in point. Mr Cooper has read to me a short statement this afternoon in which he refers, amongst other things, to a group action brought on behalf of widowers in which he is participating. What the outcome of that will be it is not possible to say, but I have to judge the matter as it stands today, and it is my duty as I see it to decline his invitation to postpone my ruling until the group action is resolved. The group action may or may not afford some relief or compensation to persons in Mr Cooper's position but, as I said, my duty is to decide whether or not the Social Security Commissioner arguably made a mistake in law. The outcome of the group action, while it may change matters for the future, cannot so far as I can perceive it affect that question.
4. In the result, the applicant's case cannot survive their Lordships' conclusion that discrimination between men and women in the payment of a widower's pension was objectively justified. Lord Hoffmann opened his discussion of the question by reference to two considerations: (a) widow's pension was never a means tested benefit, and thus its justification depended upon a perception that older widows as a class were more likely to be needy than older widowers as a class; and (b) there had never been a social or economic justification for extending widower's pension to men under pensionable age. Against that background Lord Hoffmann proceeded ultimately to say this, in paragraph 32 of his opinion:

"Once it is accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment is no longer justified becomes a social and political question within the competence of Parliament".

5. In the next paragraph Lord Hoffmann proceeds to discuss the reasoning in the Court of Appeal in that case. He held, in agreement with the first instance judge, Moses J as he then was, that the preservation of widowers' pensions for widowers bereaved before 9 April 2001 was objectively justified. That being so, the applicant cannot claim to be put in a like position as a widow would have been in like circumstances. The difference, discrimination if one likes, was objectively justified according to the decision of the House of Lords.
6. For those reasons I cannot assist Mr Cooper and it is my duty to dismiss the application, which I hereby do. As regards the future and what may happen to the group action, I have no voice today. I can do no more, though it is of no assistance, than to wish Mr Cooper good fortune.

Order: Application refused.