Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C1/97(UB) (4 June 1997)

 


Decision No: C1/97(UB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 UNEMPLOYMENT BENEFIT
Application by the claimant for leave to appeal and appeal to the Social Security Commissioner on a question of law from the decision of the Newry Social Security Appeal Tribunal dated 22 January 1996

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an application by the claimant for leave to appeal against the decision of a Social Security Appeal Tribunal which upheld the decision of an Adjudication Officer that claimant was not entitled to unemployment benefit from 5 September 1995.
2. The point in this case is whether or not the payment which claimant receives from the Southern Education & Library Board after he took retirement as a teacher is to be disregarded under regulation 25(1) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations (Northern Ireland) 1984.
3. Regulation 25(1) reads:-

"25-(1) For the purposes of Article 5 of the Order* there shall be

disregarded such pension payments for any week to any person who

has attained the age of 55 as are sums paid to him -

(a) solely by way of compensation for any employment of his coming

to an end by reason of redundancy; and

(b) otherwise than under the rules of an occupational pension

scheme or personal pension scheme of which he is or was a

member.

(2) In this regulation "occupational pension scheme" means

any scheme or arrangement which is comprised in one or more

instruments or agreements and which has effect in relation

to one or more descriptions of categories of employments so

as to provide benefits, in the form of pensions or otherwise,

payable on termination of service to earners with qualifying

service in an employment of any such description or category,

where those benefits include benefits payable by reason of

retirement which is at the normal age for retirement under

the rules of such scheme or arrangement."

*now section 30 of the Contributions and Benefits (Northern

Ireland) Act 1992.

and it is necessary for the claimant to prove, if he is to avoid the effect of this section, that he has attained the age of 55 and that payments for any week or sums paid to him solely by way of compensation for any employment of his coming to an end by reason of redundancy and otherwise than under the rules of an occupational or personal pension scheme.

4. The Adjudication Officer decided that claimant was in receipt of an occupational or personal pension which exceeded the sum of £35.00 per week and that being the prescribed amount he was therefore not entitled to unemployment benefit. By virtue of section 30(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 which provided that any payment by way of occupational or personal pension which in the aggregate exceeded the maximum sum are made for any week then the rate of unemployment benefit is reduced by 10p for each 10p of an excess and that the maximum sum means any sum not less than £35.00.
5. Claimant appealed against that decision to a Social Security Appeal Tribunal. At that Tribunal it was argued on claimant's behalf that the payment which he received was compensation for loss of his job because he was invited to take redundancy and that both the lump sum and the monthly payments were not pensions in the normal sense. It was argued that the Teachers' Premature Retirement Compensation Scheme supported this argument.

The Appeal Tribunal rejected that argument and upheld the decision of the Adjudication Officer that claimant was in receipt of an occupational personal pension.

6. Claimant sought leave to appeal to the Commissioner on the grounds that the Tribunal failed to give an adequate statement of the reasons for its decision in the findings of fact on which it was based and it also made a decision based on insufficient evidence.
7. The Adjudication Officer upon receipt of the notice of the application for leave to appeal commented in writing as follows:-

"After carefully considering the tribunal's record of the

proceedings I would submit that the tribunal in arriving

at their decision appear to have given due consideration

to all the evidence before them and the hearing appears to

have ranged comprehensively over all aspects of the case.

In examining their findings of fact and reasons for their

decision it is clear that they accepted the evidence from the

Department of Education that Mr O... was in receipt of

£13,363.48 annual pension and £1,697.93 annual compensation

payment. They have recorded that they were satisfied that

such payments were benefits in the form of pensions or

otherwise payable on termination of service and were therefore

received under an occupational pension scheme operated by

his former employers. Therefore on the evidence presented to

them, the tribunal were entitled to reach that conclusion

(R(G) 1/94, paragraph 6).

However, although purely academic, I would submit that the

tribunal erred in accepting the Adjudication Officer's

determination of the amount which exceeds the maximum sum

for the purposes of section 30(1) of the Social Security

Contributions and Benefits (NI) Act 1992.

The Adjudication Officer decided that the pension payments

exceed the prescribed amount of £35 per week by £232.36.

However in accordance with section 30(1) of the Social

Security Contributions and Benefits (NI) Act 1992, unemployment

benefit is reduced by 10 pence for each 10 pence over and

above which the pension payment exceeds £35. Therefore in

this case the pension payment exceeds the prescribed amount

by £232.30, not £232.36. Moreover although the tribunal

have decided at Part 4 of form AT3 that the payments received

by Mr O... come within the ambit of regulation 25(2), they

have stated that the payments have to be taken into account

under regulation 25(1)(b) which is the provision which actually

disregards pension payments which are otherwise than under

the rules of an occupational or personal pension scheme.

However in considering the record of the proceedings I would

submit that this was an accidental error which could have

been corrected by the tribunal (Regulation 9 of the Social

Security (Adjudication) Regulations (NI) 1996) but equally

it is also an error of law."

8. I arranged an oral hearing of the application at which claimant was represented by Mr Brady and the Adjudication Officer was represented by Mr McLaughlin. At the hearing I granted leave to appeal and both parties having consented, I treat the application as the appeal.
9. Mr Brady said that this was the type of case which was becoming increasingly common. The claimant was invited to take redundancy, the lump sum and the monthly payments are not pensions and that the whole matter boiled down to interpretation. Mr Brady said the legislation was unfair, and had claimant not taken the package he would have lost his job; claimant was informed of this compensation as opposed to a pension and no-one advised him that if he took the package it would render him unable to obtain unemployment benefit. Mr Brady said that the payment which claimant received was really compensation for the loss of his job and handed in a copy of the Teachers' Premature Retirement Compensation Scheme of January 1995, but was unable to get a copy of the Teachers' Compensation for Premature Retirement Regulations. He also referred to an unreported decision of a Great Britain Commissioner CU66/93.
10. Mr McLaughlin argued that the Tribunal did not err. He made one or two points which he made in his written comments, but argued that the claimant clearly was receiving the benefit of a pension which he was receiving by virtue of the Pension Scheme for Teachers, therefore he was receiving a pension under an Occupational Pension Scheme and drew attention to the definition in regulation 25(2).
11. I have considered all that has been said and I have read all the documents in this case. The point is a very narrow one, although the word "compensation" is used several times relating to the payment to the claimant because he lost his job when he took voluntary redundancy, nevertheless I am satisfied that, considering the definition of an Occupational Pension Scheme which includes any Scheme or an arrangement, I am satisfied that that scheme has no separate or independent existence but is graphed on to the Retirement Scheme for Teachers. In that event the Tribunal was correct in holding that the payments which claimant was receiving was under an Occupational Pensions Scheme. I therefore dismiss the appeal.
12. As far as the minor errors in the Tribunal's decision - the reference to £232.26 should be £232.30 and the reference to 25(1)(b) should be 25(2). I find that neither are of any relevance to the decision and that they can be ignored.

(Signed): C C G McNally

COMMISSIONER

4 June 1997