QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DAVID GEORGE HEAD
|- and -
|SOCIAL SECURITY COMMISSIONER
- and -
DEPARTMENT FOR WORK AND PENSIONS
Mr Andrew Henshaw of Counsel (instructed by The Solicitors Office) for the Defendant
27th April 2009
Crown Copyright ©
The Honourable Mr Justice Nicol:
"I can only interfere with the decision of the tribunal if it got the law or procedure wrong. In this case it did not do so. The tribunal and the Commissioner are both bound by the decision of the Court of Appeal, whatever the claimant might think of its approach to s.46. The tribunal reached the only decision that, as a matter of law, was open to it."
"The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a circuit judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established."
"I think a distinction should may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre--Anisminic jurisdictional error, where the court embarks upon an enquiry which it lacks all power to deal with, or fails altogether to enquire or adjudicate upon a matter which it was its unequivocal duty to address. It would include substantial denial of the right to a fair hearing, and it may include cases where the lower court has indeed acted "in complete disregard of its duties" (Gregory), and cases where the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided (Sinclair). The Sinclair type of case is perhaps a sub-class of the Gregory case. Those, in any event, may be less hard-edged then the pure pre--Anisminic jurisdictional error case. The courts will have to be vigilant to see that only truly exceptional cases -- where there has indeed, as I have put it, been a frustration or corruption of the very judicial process -- are allowed to proceed to judicial review in cases where further appeal rights are barred by section 54 (4) [of the Access to Justice Act 1999]."
"Where the right to grant or refuse leave to appeal is that of courts or tribunals which are not courts of record, there is, however, a safety net or long stop which can be invoked if the refusal of leave to appeal is plainly wrong. This is the judicial review procedure. It is to be invoked only in the plainest possible case, as otherwise the High Court would, in effect, simply be providing an avenue for appeal from the grant or refusal of leave."
"It is not necessary for me to resolve precisely the test to be applied in judicial review from a Social Security Commissioner, and I recognise that in many cases, claimants may not be legally represented and points of importance may not have been developed in the way that would be desirable. The inquiry is inquisitorial, and the Tribunal and the Commissioner are both able to play an active role in the elucidation of relevant facts and legal issues. However, having regard to the fact that this is a review of a specialist expert Tribunal in the field of detailed social security regulation concerning entitlement to public funds, it is common ground that the test to be applied to avoid unnecessary expense and to achieve the desirable aim of finality in this context is that a very substantial point of law is required."
The substantive issue
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"(1) Where for any period a person is entitled both –
(a) to a Category A … retirement pension ….and
(b) to one or more guaranteed minimum pensions,
the weekly rate of the benefit mentioned in paragraph (a) shall for that period be reduced by an amount equal –
(i) to that part of its additional pension which is attributable to earnings factors for any tax years ending before [6th April 1997]
(ii) to the weekly rate of the pension mentioned in paragraph (b) (or, if there is more than one such pension, their aggregate weekly rates),
whichever is the less."
"Now, whereas it is conceivable that the right to be a beneficiary of an old age insurance system to which one has paid contributions is a right of ownership guaranteed by Article 1 of the First Protocol, the same is not necessarily true where the exact amount of the pension is concerned. The Commission considers that even if it is assumed that Article 1 of the First Protocol guarantees persons who have paid contribution s to a social insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount."
In X v Italy App. No. 7459/76 (1977) 11 DR 114 referred to Muller and added,
"In order that such a right may be established, however, it is necessary that the interested party should have satisfied domestic legal requirements governing the right, in principle to an annuity."
" … In my judgment the starting point for this point of the case [i.e. Article 1 Protocol 1 taken on its own by contrast with another line of argument run by the appellants based on Article 14 in conjunction with Article 1 Protocol 1] is the proposition, vouched by the Strasbourg court's judgment in Marckx v Belgium (1989) 2 EHRR 330, that art1P applies only to a person's existing possessions: it does not guarantee a right to acquire possessions. It is then submitted for the Secretary of State that domestic legislation which specifies the amount of any state benefit, as has happened here in both appeals, cannot constitute an interference with the right given by art1P: rather it merely defines the property right in the particular case, whose security art 1P may then protect.
 This proposition taken by the Secretary of State is supported by a consistent line of Strasbourg authority, some of it dealing in terms with complaints put forward by UK pensioners abroad as to the government's refusal to uprate their pensions."
Mr Clifford relies on the reasoning of Commissioner Turnbull in CP/5084/2001. He had to consider the case of a woman pensioner who was admitted to hospital. During her stay, her pension was reduced. This was in accordance with regulations, but she argued that they "deprived" her of her possessions and so was contrary to Article 1 Protocol 1 on its own and in conjunction with Article 14. Commissioner Turnbull dismissed the argument. He described the distinction between a provision which defined an entitlement on the one hand and deprived a person of an entitlement on the other as elusive. He suggested four factors that might be material in deciding which side of the line a particular case fell:
"(a) Whether the provision has the effect of reducing a benefit previously in payment, as opposed simply to preventing an entitlement to a larger payment or not providing for a larger payment in the claimant's circumstances.
(b) Whether the provision was in force throughout the time when the claimant was paying the contributions which entitled him to the contributory benefit. If it was, it is much less likely to have deprived him of the benefit for which payment of the contribution qualified him, since they can be considered to have been paid on the footing that the benefit would be reduced in the specified circumstances.
(c) The closeness of the link between the benefit and payment of contributions.
(d) The amount of the reduction of the benefit."