ON APPEAL FROM UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Justice Walker and Upper Tribunal Judges Stephen Pacey and Edward Jacobs
 UKUT 200 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| SISTER ISOBEL MARY SCOTT
|- and -
SECRETARY OF STATE FOR WORK AND PENSIONS
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Ms Marie Demetriou ( instructed by Office of the Solicitors for DWP ) appeared on behalf of the Respondent.
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Lord Justice Rimer:
Entitlement to a state pension credit
"Regulations may provide that, in prescribed cases, subsection (3) [summarised in  above] shall have effect with the substitution for the reference in paragraph (a) to the standard minimum guarantee of a reference to a prescribed amount."
"In a case to which this paragraph applies—
(a)section 2(3) [of the Act] has effect with the substitution for the reference to the standard minimum guarantee in section 2(3)(a) of a reference to a nil amount; and
(b)except in the case of a person who is a remand prisoner, nil is the prescribed additional amount for the purposes of section 2(3)(b)."
The facts found and decision by the appeal tribunal
"12. It follows from the lack of centralised structure within the Benedictine Order and the autonomous nature of each house, including Oulton Abbey, that no funds are provided by the order for the appellant. The community at Oulton Abbey must be self-supporting and insist it is for that reason that the appellant works in the nursing home and playgroup. I accept that the proceeds of her effort are received by the community generally and used to provide her with maintenance and accommodation. However, I find there is a qualitative difference between funds which are earned by the appellant's own efforts which are subsequently applied to her maintenance and funds which come from an outside source sufficient for her complete maintenance, which are available to her by reason only of her membership of the Order."
The decision of the Upper Tribunal
"19. As regards the expression 'religious order', the claimant argued that this connoted the existence of centralised authority and control. If this is right, it would dispose of these appeals. We do not accept that it is right. Lord Hoffmann said in Moyna v Secretary of State for Work and Pensions  1 WLR 1929 at : 'meaning … depends not only upon the conventional meaning of the words used but also upon syntax, context and background.' As to conventional meaning, 'religious order' may be used in the narrow, technical sense relied on by the claimants. But it is also used in a broader, less technical sense, as dictionary definitions (in so far as they are relevant) confirm. So Chambers 21st Century Dictionary gives: 'a religious community living according to a particular rule and bound by vows'. And the Shorter Oxford English Dictionary gives: 'A society of monks, nuns or friars living under the same religious, moral and social regulations and discipline'. As to context and background, regulation 6 [of the 2002 Regulations] is concerned with financial matters. The focus is on the body that provides for the maintenance of its members. It has to be a religious body, but there is nothing to suggest that it is limited to those religious bodies that are religious orders within the narrow, technical sense. If there is a natural meaning of 6(2)(b), it is, in our view, that 'religious order' is used in the broader sense found in the dictionaries. There may be some logic in distinguishing certain types of community from others. But it is difficult to see why centralised authority or control should be a distinguishing feature when identifying communities whose members may not be entitled to a guarantee credit. We consider that this would introduce a distinction without any discernible rationale to explain or justify it.
20. At various stages of their argument, the claimants appear to suggest that 'religious order' connoted financial support. This seemed to us to elide with the arguments on the meaning of 'fully maintained'. To the extent that there was a separate argument in this regard on the meaning of 'religious order', we do not accept it. It is clear from the face of regulation 6(2)(b) that it contemplates that a 'religious order' may not be one which fully maintains its members. The purpose of the latter part of (b) is to make clear that subparagraph (b) will only have effect in those cases.
21. Accordingly to the extent that the appeal tribunals accepted the claimants' contentions on the meaning of 'religious order', they made an error in point of law in doing so.
22. That brings us to the claimants' contentions on the meaning of 'fully maintained by their order'.
23. We accept that the claimants by their own work (or any entitlement to benefits) contribute to the funds that support their orders. But that does not prevent the claimants being fully maintained by their orders. The focus is on who it is that maintains the claimants, not where the money comes from. Both claimants are bound by vows of poverty and take no personal benefit from the income they generate (or any benefits they may receive). That money is held by the community for the use of the community as a whole. Leaving aside the niceties of legal ownership of the funds at particular stages, the claimants have no power of their own to meet any of their needs and are maintained by their religious orders. Neither claimant maintains herself nor is either maintained by anyone other than her religious order.
24. [Sister Isobel] does not receive a state retirement pension ...
25. Accordingly, the appeal tribunals made an error in point of law in not deciding that regulation 6(2)(b) applied to the claimants."
The giving of permission to appeal in this court.
"… why the two sisters were not supporting themselves. They were running a home for good social purposes, and were maintaining themselves by their enterprise."
"6. In granting a second appeal, I have in mind that this is an issue of statutory construction; moreover it is one on which the liability of the state towards a considerable number of people may apply. One aspect that concerns me is the very limited findings of fact that have been made. Points have been raised in the skeleton arguments which may depend on what facts are held to be applicable; for example, the nature of the Benedictine Order, and whether it is different from other Roman Catholic religious orders for present purposes.
7. I am told that this is not an order which, if the nuns are unable to continue with their work and, as they would put it, to maintain themselves, they would be maintained by the Benedictine Order. But on that, as on other points, it may be difficult for this court, which of course only considers issues of law, to decide upon what factual basis the decision should be reached. Mr Knafler submits that the absence of more detailed findings of fact is in his favour. That may be arguable, but my concern is that in granting leave, as I do, because of the generality of the point, this court would normally expect clear findings of fact upon which to base a legal analysis. My concerns may be unfounded, but I do suggest that consideration be given by the parties before the appeal is heard to compile an agreed statement of facts so that the court can more readily construe the regulation on a specific factual basis."
Lord Justice Sullivan:
Lord Justice Carnwath:
Order: Appeal dismissed