Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Chief Adjudication Officer v. Pearse [1992] UKSSCSC CP_64_1988 (12 June 1992)
URL: http://www.bailii.org/uk/cases/UKSSCSC/1992/CP_64_1988.html
Cite as: [1992] UKSSCSC CP_64_1988
[New search] [Printable RTF version] [Help]
Chief Adjudication Officer v. Pearse [1992] UKSSCSC CP_64_1988 (12 June 1992)
- the claimant was not precluded by regulation 4(1)(b) of the Social Security (Widow's Benefit and Retirement Pensions) Regulations 1979 (SI 1979/642) from entitlement to increment to her Category B pension for those days in respect of which she received graduated retirement pension;
- regulation 3 of the Social Security (Graduated Retirement Benefits) (No. 2) Regulations 1978 (SI 1978/393) had the effect of preserving entitlement to graduated retirement pension. It did not have the effect of treating graduated retirement pension as a benefit under Chapters I and II of Part II of the Social Security Act 1975 for the purposes of the disqualifying provisions of regulation 4(l)(b).
- My decision is that the decision of the Bristol social security appeal tribunal, given on 5 April 1988, is erroneous in point of law and accordingly I set it aside. In exercise of my jurisdiction I give the decision which the tribunal should have given, namely that the claimant on her husband's retirement became entitled to increments of her Category B retirement pension by reference to her husband's period of deferment of entitlement to his Category A retirement pension.
- I held an oral hearing of this appeal. The claimant was represented by Mr. A. King of the Avon and Bristol Community Law Centre. Mr. Duncan Ouseley of Counsel, instructed by the Solicitor's Office in the Department of Social Security, appeared for the adjudication officer.
- This is a claimant's appeal against the decision of the Bristol social security appeal tribunal, given on 5 April 1988, which upheld an adjudication officer's decision that an increase of retirement pension on account of deferred retirement was not payable because there were no days of increment in the claimant's period of deferred retirement. At issue before the tribunal was whether graduated retirement benefit is an excluding benefit by virtue of the provisions of regulation 4(1)(b) of the Social Security (Widow's Benefit and Retirement Pension) Regulations 1979, so as the days during which it is received are not to be treated as days of increment when retirement has been deferred.
- The claimant, a married lady, had no entitlement to a Category A retirement pension under section 28 of the Social Security Act 1975. On 25 March 1980 she was awarded graduated retirement benefit by virtue of the provisions of regulation 3, as read with Schedule 1, of the Social Security (Graduated Retirement Benefit) (No. 2) Regulations 1978 from and including 26 June 1980 at the weekly rate of £0.36. The benefit was paid to her annually in December of each year. On 11 January 1981 the claimant's husband reached pensionable age. Instead of then taking his Category A retirement pension, he chose to defer it and applied for a determination of his entitlement to pension payable in the event of his retirement. As her husband had not retired the claimant could not claim her entitlement to Category B pension payable under section 29 of the Social Security Act 1975 and she had to defer receiving this benefit until her husband retired because of the provisions of Schedule 1, paragraph 5, to the Resources Act 1975. The husband retired on 28 June 1985 and he and the claimant were awarded Category A and Category B retirement pensions respectively from that date. Because during the whole of the period of deferred retirement the claimant was in receipt of graduated retirement benefit, the adjudication officer decided that she was receiving a benefit payable under Chapter I of Part II of the Social Security Act 1975 during the entire period of deferred retirement and consequently that there were no days of increment and her Category B retirement pension could not be increased under the provisions of Schedule 1 of the Social Security Act 1975. This decision was confirmed by the tribunal on appeal.
- The National Insurance Act 1959 made provision for graduated retirement benefit and that provision was continued under the National Insurance Act 1965, the relevant sections being sections 36 and 37. Graduated retirement benefit was an increase in the weekly rate of retirement pension and it was originally calculated in respect of each unit of graduated contributions paid by an employee. Contributions payable since 1975 have not earned entitlement to graduated benefit, but payment of graduated retirement benefit continues to be paid on the basis of the contributions paid before then. The amount is small and in the case of the claimant never exceeded £0.60 a week. After the enactment of the Social Security Act 1975 the conditions of entitlement to a retirement pension were governed by the provisions of that Act. The Social Security (Consequential Provisions) Act 1975 made provisions consequential on and in connection with the Social Security Act 1975; it repealed the National Insurance Act 1965. However sections 36 and 37 of the repealed Act were kept in force, first by the Social Security (Graduated Retirement Benefit) Regulations 1975 and later by the Social Security (Graduated Retirement Benefit) (No. 2) Regulations 1978, [SI 1978/393] which revoked the earlier statutory instrument and which contain the provisions applicable to the issue before me; these regulations were made by the Secretary of State for Social Services in exercise of the powers conferred on him by section 2(1) of, and paragraphs 3, 7 and 9 of Schedule 3 to, the Social Security (Consequential Provisions) Act 1975 and section 24(1) of the Social Security Pensions Act 1975. In order to appreciate the point of the case it is necessary to read the Social Security (Graduated Retirement Benefit) (No. 2) Regulations which, in so far as relevant, I set out below:
- The ground upon which the claimant's disallowance was made was that during her husband's period of deferment she had been in receipt of the graduated retirement pension. Under Schedule 1 of the Social Security Pensions Act 1975 a person is entitled to an increment calculated by reference to each complete "incremental period" in his or her "period of deferment". "Incremental period is defined in paragraph 2(2)(a) of the Schedule as:
- Mr. King's argument is founded on the decision given by a Commissioner on Commissioner's file CSP/4/1986. This decision concerned an appeal heard by a social security appeal tribunal in Scotland where the initial decision was given by an adjudication officer in Northern Ireland. The Commissioner's interpretation related to the primary and secondary legislation in Northern Ireland, but that legislation is in pari materia with the Acts and regulations enacted in respect of Great Britain to which I have referred earlier. It is clear from reading of the Commissioner's decision that he was of opinion that British law led to the same result. The Commissioner held that because regulation 3 of the Social Security (Graduated Retirement Benefit) (No. 2) Regulations 1978 keeps alive and incorporates into the Social Security Act 1975 the sections of the National Insurance Act 1965 relating to graduated retirement benefit for limited purposes only, those sections are not to be treated as being incorporating into the later Act for the purpose of regulation 4 of the Social Security (Widow's Benefit and Retirement Pension) Regulations 1979. The Commissioner rejected a contrary view argued on behalf of the adjudication officer in that case. The adjudication officer appealed to the Court of Session and that Court refused to entertain the appeal because in their view it raised an academic question. But that, as I understand it, depended on the circumstances pertaining in that case at the time it came before the Court. In the case before me the issue is a live one.
- Mr. King argues that the Commissioner in CSP/4/1986 was right in law in holding that the deeming provisions of regulation 3 of the 1978 Regulations were limited to the purposes set out in sub paragraphs (1) and (2) of that regulation. He maintains that the purposes were, in summary, to preserve rights or prospective rights of graduated retirement pension conferred by the earlier legislation. The Commissioner relied upon Ingle v. Farrand [1927] AC 417 and held that, as the regulations themselves expressed the purpose for which a hypothesis is to be made, then the effect was that the hypothesis is not to be made for all purposes but only for the purposes indicated; and he found that the purpose was only to preserve the rights or prospective rights to graduated retirement benefit.
- Mr. King further cites that decision as authority for the proposition that regulation 16 of the Social Security (Widow's Benefit, Retirement Pensions and Other Benefits) Transitional Regulations 1979, (which gave relief to certain claimants who might otherwise have lost entitlement to increment) was of no assistance because there was no ambiguity in the provisions of regulation 3 of the Social Security (Graduated Retirement Benefit) (No. 2) Regulations 1978 and he relied on the reasoning of the Commissioner in paragraphs 18 and 19 of CSP/4/1986. The Commissioner found that there was no ambiguity in the earlier enactment and had regard to the words of Lord Buckmaster in Ormond Investment Company v. Betts [1928] AC 143 at page 150 where it was said that a later enactment did not have effect on the construction of an earlier Act unless there was ambiguity in the earlier enactment. Mr. King further argued that the purpose of regulation 4(1)(b)(i) of the Social Security (Widow's Benefit and Retirement Pensions) Regulations 1979 was to avoid a duplication of benefits which might otherwise arise if a claimant were to qualify for both benefit paid upon retirement and increments gained by deferred retirement. He says that the intention was that a claimant will have entitlement to one or the other and be able to choose. He contends that to deprive claimants of both benefits was contrary to the intention of the legislature. He contends that the amount of the graduated retirement benefit is so small as to have that consequence.
- Mr. Ouseley accepts that if CSP/4/1986 is right then the claimant's appeal in the case before me must be allowed. However he challenges the correctness of the decision. He points to the claimant having received graduated retirement benefit during a period of deferment and poses the question whether this benefit is a benefit under Chapters I and II of Part I of the Social Security Act 1975. He argues that such benefit can only be paid under the provisions of that part of the Act and points to section 36(9) of the 1965 Act (as perpetuated) which provides that the section is to be construed and have effect if it were included in Chapter I of Part II of the Social Security Act 1975; he maintains that the question, which he posed, should only be answered in the affirmative. He then went on to deal with the limiting words of regulation 3 of the 1978 Regulations. He criticises the Commissioner's findings that the provisions of the Schedule to those regulations were only to have effect in so far as they ensured continued entitlement and that they had no other implication at all. He submits that once a provision was incorporated into legislation it has effect for all purposes unless there is some limitation. He maintains that the words used in regulation 3(1) of the Social Security (Graduated Retirement Benefit) (No. 2) Regulations 1978 did not provide a limitation. He argues that the purpose of those regulations are satisfied in their entirety by the provision for payment of graduated retirement benefit; section 36 (as perpetuated) does no more than provide for entitlement and it says nothing at all about the effect of payment arising from such entitlement. Regulation 4 of the Social Security (Widow's Benefit and Retirement Pension) Regulations 1979 is not concerned with entitlement, it is concerned with what happens as a result of the receipt of benefit, and he emphasises that nothing in regulation 3 of the 1978 Regulations is going to affect the effect of a payment and it does not limit the scope of other legislation. Mr. Ouseley also takes the point that regulation 3(1) must not be looked at in isolation but as part of a series of interlocking Acts and regulations. He points to the 1978 Regulations as being made under the Social Security (Consequential Provisions) Act 1975 and argues that regard must be had to paragraph 9 of Schedule 3 to that Act, which allows regulations to be made for facilitating the introduction of the scheme of social security contributions and benefits established by the 1975 Act and that the 1978 Regulations must be construed as part of a scheme. Mr. Ouseley emphasised that if you have a provision dealing with entitlement on one set of regulations, it does not limit other regulations from dealing with the consequences of that entitlement, and submits that the Commissioner dealt with one part of the scheme in isolation.
- I have given anxious consideration to CSP/4/1986. I bear in mind that a single Commissioner in the interests of comity and to secure certainty and avoid confusion on questions of legal principle normally follows the decision of an other single Commissioners, but I recognise that a slavish adherence to this would lead to the perpetuation of error and that I am not bound to do so. While I bear in mind that the Commissioner who gave that decision was a Commissioner of great experience I would not follow him, if I thought the decision was wrong. However I find myself coming to the same conclusion as did the Commissioner in that case and my process of reasoning differs to some small degree only from his. I accept that one must not look at regulation 3 of the Social Security (Graduated Retirement Benefit) (No. 2) Regulations 1978 in isolation. It is to be borne in mind that those regulations form part of the present system of social security which is embodied in the Social Security Act 1975 to 1978 and the various regulations made under the authority of those Acts and the Social Security (Consequential Provisions) Act 1975. However it is to be remembered that the National Insurance Act 1959 had made provision for graduated retirement benefit and that provision was continued under the provisions of the National Insurance Act 1965. As I have explained earlier, graduated retirement benefit was an increase in the weekly rate of retirement pension and it was calculated in respect of each unit of graduated contributions paid by an employee. On the repeal of the National Insurance Act 1965 graduated retirement benefit became a dead benefit but, as various people had paid contributions which would entitle them to it in the past, the benefit was preserved and they continued to be entitled to it on the basis of the past contributions. The Social Security (Consequential Provisions) Act 1975 repealed the National Insurance Act 1965 and empowered the making of regulations with respect to the transition from the operation of the National Insurance Act; Schedule 3 to the Social Security (Consequential Provisions) Act 1975, in Part I relates to the supersession of the National Insurance Acts and paragraph 7 thereof allows of provisions to be made by regulation for continuing in force such provisions of various repealed Acts, including the National Insurance Act 1965, as the Secretary of State considered appropriate "for the purpose of preserving rights to benefit under that Act or those enactments in those cases (if any) in which in his opinion adequate alternative rights to benefit under the new Act were not conferred in pursuance of paragraph 3 above, or for temporarily retaining the effect of those provisions for transitional purposes". It was in pursuance of the power contained in that paragraph, as well as the powers conferred in paragraphs 3 and 9 of the same Schedule, that the Secretary of State made the Social Security (Graduated Retirement Benefit) (No 2) Regulations 1978. Sections 36 and 37 of the National Insurance Act 1965, the sections which related to graduated retirement benefit, were continued by regulation 3. But the purpose for which they were to continue in force was that set out in regulation 3(1), namely "for the purpose of securing continuity between [the Social Security Act 1975] and the 1965 Act in the case of persons who had, immediately before 6 April 1975, rights or prospective rights to or expectations of graduated retirement benefit under sections 36 and 37 of the 1965 Act, by preserving those rights and temporarily retaining the effect of those sections for transitional purposes". It is to be noted that the wording of regulation 3(1) closely follows the wording of paragraph 7 of Schedule 3 to the Social Security (Consequential Provisions) Act 1975.
- In my judgment regulation 3(1) states unambiguously the purpose of the regulation and, like the Commissioner in the earlier case, I am satisfied that I have to give effect to those limiting words. Sections 36 and 37 are not continued in force for all purposes but are to preserve the rights of persons who had entitlement to graduated retirement benefit, and in that way to secure continuity between the Social Security Act 1975 and the National Insurance Act 1965. The right to the payment of graduated retirement benefit was preserved for people who had paid contributions entitling them to such benefit under the provisions of the earlier Act. In order to operate that perpetuated entitlement provision had to be made for it to be incorporated into the new scheme of administration provided for by the Social Security Act 1975. The law relating to such administration is contained in Chapter VI of Part II of the 1975 Act; the provisions relating to administration of benefit under Chapters I to VII are contained there. Chapter I of Part II provides for the various contributory benefits under the Act. In my view section 36(9) does no more than provide for the administration of the perpetuated benefit which was to continue.
- I accept Mr. Ouseley's argument that if you have a provision dealing with entitlement, it does not limit other regulations when dealing with the effect of payment arising from such entitlement. But in my judgment the disqualifying regulations must cover the case of a person who has such an entitlement and regulation 4 of the Social Security (Widow's Benefit and Retirement Pensions) Regulations do not do so in so far as graduated retirement benefit is concerned.
- Like the Commissioner in CSP/4/1986 I have difficulty in understanding how it can be suggested that a provision for establishing continuity between the Social Security Act 1975 and the National Insurance Act 1965 can be said to be relevant to the provisions of the Pensions Act. As was pointed out by the Commissioner the Pensions Act was not on the statute book when the Social Security (Graduated Retirement Benefit) Regulations 1975 (the precursor of the 1978 Regulations) were made.
- It has been argued that regulation 16 of the Social Security (Widow's Benefit, Retirement Pension and Other Benefits) (Transitional) Regulations 1979 can be used as an aid to the construction of the earlier regulations because it is said that the draftsman of those regulations took the view that the Social Security (Widow's Benefit and Retirement Pensions) Regulations 1979 had the effect of causing a loss of days in the deferred period when a person was in receipt of graduated retirement benefit and provided against it for certain women. That case was made to the Commissioner in CSP/4/1986 and rejected by him. I feel I cannot do better than to borrow and adopt his words. He said at paragraph 19 :
Mr. J. J. Skinner CP/64/1988
11.3.91
CA (Purchas and Stocker LJJ and
Sir Christopher Slade)
Deferred retirement - claimant in receipt of graduated retirement benefit during period of deferral - whether "days of increment"
The claimant was a married woman who did not satisfy the contribution conditions for a Category A retirement pension. In June 1980 she became entitled to a graduated retirement benefit of £0.36 per week. In January 1981 her husband reached pensionable age (65) but deferred his retirement. He retired in June 1985 and became entitled to a Category A pension and the claimant then became entitled to a Category B pension. The adjudication officer decided that because the claimant was in receipt of graduated retirement benefit, the days in the period January 1981 to June 1985 were not "days of increment" and accordingly the claimant was not entitled to an increased rate of Category B pension by virtue of her husband's deferment of retirement.
The Commissioner held that:
On 12 June 1992 the Court of Appeal (Purchas and Stocker LJJ and Sir Christopher Slade), affirming the reasoning of the Commissioner, dismissed an appeal by the adjudication officer and the Secretary of State.
Note: Regulation 4 of the Social Security (Widow's Benefit and Retirement Pensions) Regulations 1979 was amended with effect from 5 August 1992 by SI 1992/1695 to reverse the effect of this decision.
"3.– (1) The provisions of this regulation shall have effect for the purpose of securing continuity between the Act and the 1965 Act in the case of persons who had, immediately before 6th April 1975, rights or prospective rights to or expectations of graduated retirement benefit under sections 36 and 37 of the 1965 Act by preserving those rights and temporarily retaining the effect of those sections for transitional purposes.
(2) Paragraph (3) below shall have effect so that notwithstanding their repeal by the Social Security Act 1973 those sections shall, for the purpose aforesaid, continue in force subject to the making in them of the modifications required-
(a) to bring them into conformity with the provisions of the Act and the Pensions Act and to enable them to have effect as if contained in the scheme of social security benefits established by those Acts;
(b) to replace section 36(4) of the 1965 Act (increase of graduated retirement benefit in cases of deferred retirement) with provisions corresponding to those of paragraphs 2 to 3 of Schedule 1 to the Pensions Act; and
(c) to extend section 37 of the 1965 Act (increase of woman's retirement pension by reference to her late husband's graduated retirement benefit) to men and their late wives.
(3) On and after 6th April 1979 those sections shall continue in force in the modified form in which they are set out in Schedule 1 to these regulations, but not so as to save the National Insurance (Graduated Retirement Benefit and Consequential Provisions) Regulations 1961, so far as deemed to have been made under those sections, from being invalidated by the repeal; and section 118(1) of the 1965 Act (short title) shall also continue in force."
Section 36 in its modified form is in Schedule 1 to the regulations and I set out the material parts thereof:
"36.– (1) Subject to the provisions of the Act, graduated retirement benefit shall be payable to any person who is over pensionable age and who (except as mentioned in section 37(1) below) has retired from regular employment, and shall be an increase in the weekly rate of his retirement pension equal to 5.39 pence for each unit, ascertained in accordance with subsections (2) and (3) of this section, of the graduated contributions properly paid by him as an insured person, the result being rounded to the nearest whole penny, taking ½p as nearest to the next whole penny above.
(2)–(6) . . . . . . .
(7) A person who has attained pensionable age and retired from regular employment, but is not entitled to a retirement pension, shall be treated for the purposes of the foregoing provisions of this section as receiving a retirement pension at a nominal weekly rate:
Provided that -
(a) this subsection shall not confer any right to graduated retirement benefit on a person who would be entitled to a retirement pension but for some provision of the Act or of regulations disqualifying him for receipt of it; and
(b) regulations may provide that any right by virtue of this subsection to benefit at less than a specified weekly rate shall be satisfied either altogether or for a specified period by the making of a single payment of the prescribed amount.
(8) ......
(9) This section and section 37 below and the Act shall be construed and have effect as if this section and section 37 below were included in Chapter I of Part II of that Act (contributory benefits); and references to that Chapter, that Part or that Act in any other enactment or in any instrument shall be construed accordingly:
Provided that nothing in this subsection shall affect the construction of any reference to section 36 or 37 of this Act or of that Act or to any of the subsections of those sections; and any increase in the weekly rate of a person's retirement pension, to the extent that it is attributable to subsection (4) of this section, shall be left out of account in determining the weekly rate of pension for the purposes of sections 14(6) and I5(4) of the Act (rate of unemployment benefit, sickness benefit or invalidity pension for persons over pensionable age).
(10) ....."
"any period of 6 days which are treated by regulations as days of increment for the purpose of the Schedule in relation to the person and the pension in question."
The relevant defining regulation is regulation 4(1) of the Social Security (Widow's Benefit and Retirement Pension) Regulations 1979 [SI 1979/642]. This provides that a day, other than a Sunday, in a person's period of deferment is a day of increment if certain conditions are satisfied. I must set out the material parts of the paragraph:
"4.– (1) For the purposes of paragraph 2 of Schedule 1 to the Pensions Act a day shall be treated as a day of increment in relation to any person if it is a day in that person's period of deferment, other than a Sunday, in respect of which-
(a) if that person had retired from regular employment on attaining pensionable age, or in the case of a married woman and her category B retirement pension or section 10(2) increase, if she and her husband had retired from regular employment on attaining pensionable age, that person would have been entitled to a Category A or a Category B retirement pension (and would not have been disqualified for receiving it by reason of imprisonment or detention in legal custody); and
(b) that person had not received any of the following benefits-
(i) any benefit under Chapters I and II of Part II of the Act other than child's special allowances, attendance allowance, mobility allowance and guardian's allowance; or
(ii) injury benefit or an unemployability supplement; and
(c) ........"
It is to be noted that regulation 4(1)(b) provides that a day in a period of deferment is not a day of increment if a benefit under Chapters I and II of Part II of the Act (other than the benefits excluded by the paragraph) have been received in respect of that day. Section 36(9) of the 1965 Act provides that that section and section 37 are to be construed and have effect as if they were included in Chapter I of Part II of the Social Security Act 1975.
"19. This argument raises the question as to the effect of the interpretation of an earlier enactment adopted by the draftsman of a later enactment. The law reports contain many instances of cases where a later Act has purported to relieve in a limited class of cases from the provisions of an earlier Act, where, but for the later provision, one might have thought that there was nothing to relieve from either in the limited class of cases or at all. Can this have an effect on the construction of the earlier Act? The leading case is Ormond Investment Company v. Betts [1928] AC 143, where the above question was answered "No, unless there is an ambiguity in the earlier enactment". (see per Lord Buckmaster at page 150). I do not here consider that there was any ambiguity in the earlier enactment. I think that it was probably overlooked by the draftsman of the 1979 transitional regulations that the "deeming" provision of the modified section 35(9)(NI) or 36(n)(GB) of the National Insurance Act was itself subject to the overriding limiting purpose for which it was kept alive as expressed in regulation 2(NI) and regulation 3(GB) of the 1978 regulations."
Like the Commissioner I have already come to the conclusion that regulation 3(1) of the 1978 Regulations is unequivocable.
Date: 11 March 1991 (signed) Mr. J. J. Skinner
Commissioner
The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.
Mr. D. Ouseley and Mr. Thomas Hill (instructed by P. K. J. Thompson Esq., Solicitor to the Department of Health and Social Security) appeared on behalf of the Appellants (Respondents).
Mr. Mark Rowland (instructed by Messrs Andrew S. King, Avon) appeared on behalf of the Respondent (Appellant).
SIR CHRISTOPHER SLADE: The Chief Adjudication Officer and the Secretary of State for Social Security appeal to this court from a decision of Mr. Commissioner Skinner given on 11 March 1991 relating to the Category B retirement pension of the respondent, Mrs. Pearse ("the claimant"). The Commissioner has given leave to appeal.
A Category A retirement pension is one payable by virtue of the claimant's own contribution record under section 28 of the Social Security Act 1975 ("the 1975 Act"). A Category B retirement pension is one payable by virtue of the contribution record of the claimant's spouse, under section 29 of that Act. Before 1 October 1989, when the subsection was amended, it was a condition of entitlement that both spouses (if both still living) should have attained pensionable age and should have retired from regular employment.
By virtue of section 12 of the Social Security Pensions Act 1975 ("the Pensions Act"), Schedule 1 to that Act has effect for increasing the rate of a Category A or Category B retirement pension in cases where a person defers his retirement after attaining pensionable age. Schedule 1 contains an elaborate formula for ascertaining the increments in the case of any claimant. Paragraph 2(1) provides for their assessment by reference to "each incremental period in his period of deferment" and "incremental period" is defined by paragraph 2(2)(a) (as amended) as meaning:
"any period of six days which are treated by regulations as days of increment for the purposes of this Schedule in relation to the person and the pension in question".
For the purposes of paragraph 2, in its application to Category B retirement pension to which a married woman is entitled by virtue of her husband's contributions, a woman who retires before her husband is treated as deferring her retirement until he retires (see para. 5(1) ibid).
In the present case, on 26 June 1980, the claimant became entitled to graduated retirement benefit at the weekly rate of £0.36 and this was paid to her annually thereafter. The possible relevance of this benefit will be explained later. She did not satisfy the contribution conditions for a Category A retirement pension.
On 11 January 1981 her husband reached pensionable age (65) but deferred retirement, so that the claimant was not yet entitled to claim for Category B pension. On 28 June 1985 he retired and became entitled to a Category A retirement pension. At the same time, the claimant herself became entitled to a Category B retirement pension.
The issue in this case is whether the days falling between 11 January 1981 and 27 June 1985 were "days of increment" entitling the claimant to an increased rate of Category B pension as from 28 June 1985, by virtue of her husband's deferment of retirement. The appellants' case is that these days were disqualified from being "days of increment", because she was in receipt of graduated retirement benefit during the whole of the relevant period. On these grounds an adjudication officer, on 4 October 1985, decided that no increased rate was payable to the claimant. She appealed to the Bristol social security appeal tribunal which, by a decision given on 5 April 1988, upheld the adjudication officer's decision. She then appealed to the social security Commissioner (Mr. Commissioner Skinner) who, by his decision given on 11 March 1991, held that the decision of the social security appeal tribunal was erroneous in law and set it aside. It is his decision which is now under appeal.
A brief reference to paragraph 2 of Schedule 1 to the Pensions Act explains why the definition of "days of increment" for the purposes of that Schedule has been of crucial importance throughout this dispute in considering the claimant's claim to an increased rate of Category B pension as from 28 June 1985.
The defining regulation in force at the relevant time was regulation 4(1) of the Social Security (Widow's Benefit and Retirement Pensions) Regulations 1979 (SI 1979/642). Regulation 4(1)(a) sets out certain conditions which have to be satisfied if a day is to be treated as a "day of increment" in relation to any person. It is common ground that these conditions are satisfied in relation to the claimant. Regulation 4(1)(b) then sets out certain factors which preclude a day from being so treated. So far as material, it reads:
"that person had not received any of the following benefits -
(i) any benefit under Chapters I and II of Part II of the Act [the 1975 Act] other than child's special allowance, attendance allowance, mobility allowance and guardian's allowance, ..."
Thus, a day in respect of which a person has received any such benefit cannot qualify as "a day of increment".
It is common ground that graduated retirement benefit (which I will henceforth call "GRB") is not in fact a benefit paid under either Chapter I or Chapter II Part II of the 1975 Act; it is paid under other legislation to which I will refer later. Thus far, therefore, there appears to be no reason why the receipt by the claimant of ORB during the period 11 January 1981 to 27 June 1985 should have prevented this period from qualifying as "days of increment". The appellants, however, submit that because of another statutory instrument, to which I have not yet referred, namely the Social Security (Graduated Retirement Benefit) No. 2 Regulations 1978 (SI 1978/393), the reference in regulation 4(1)(b) of SI 1979/642 to "any benefit under Chapters I and II of Part II of the Act" must be construed as including a reference to GRB. This submission, which is at the heart of this appeal, makes it necessary to consider the origin of GRB and of SI 1979/642.
GRB is an increase in the weekly rate of retirement pension, originally calculated in respect of each unit of graduated contributions paid by an employee. It was first provided for by the National Insurance Act 1959 and that provision was continued under sections 36 and 37 of the National Insurance Act 1965 ("the 1965 Act"). The 1965 Act was repealed as from 6 April 1975 by the Social Security Act 1973, with the result that contributions payable since 1975 have not earned entitlement to GRB. However, for the purpose of giving a claimant credit for contributions paid before that date, sections 36 and 37 of the 1965 Act were kept alive:
(a) first, by the Social Security (Graduated Retirement Benefit) Regulations 1975 (SI 1975/557), and subsequently
(b) by the Social Security (Graduated Retirement Benefit) (No. 2) regulations 1978 (SI 1978/393).
These two sets of regulations were made by the Secretary of State in exercise of (inter alia) powers conferred on him by paragraph 7 of Part I of Schedule 3 to the Social Security (Consequential Provisions) Act 1975 which, so far as material, provided:
"Notwithstanding any repeal effected by the 1973 Act, provision may be made by regulations for continuing in force, with or without prescribed modifications, such provisions of [the 1965 Act] ... as the Secretary of State considers appropriate for the purpose of preserving rights to benefit under that Act ... in those cases (if any) in which in his opinion adequate alternative rights to benefit under the new Act are not conferred in pursuance of paragraph 3 above, or for temporarily retaining the effect of those provisions for transitional purposes".
The draftsmen of SI 1975/557 and SI 1978/393 clearly had closely in mind the wording of the empowering provisions just quoted. Regulation 3 of SI 1978/393, so far as material provided as follows:
"(1) The provisions of this regulation shall have effect for the purpose of securing continuity between the [1975 Act] and the 1965 Act in the case of persons who had, immediately before 6th April 1975, rights or prospective rights to or expectations of graduated retirement benefit under sections 36 and 37 of the 1965 Act, by preserving those rights and temporarily retaining the effect of those sections for transitional purposes.
(2) Paragraph (3) below shall have effect so that notwithstanding their repeal by the Social Security Act 1973 those sections shall, for the purpose aforesaid, continue in force subject to the making in them of the modifications required -
(a) to bring them into conformity with the provisions of the Act and the Pensions Act and to enable them to have effect as if contained in the scheme of social security benefits established by those Acts;
(b) to replace section 36(4) of the 1965 Act (increase of graduated retirement benefit in cases of deferred retirement) with provisions corresponding to those of paragraphs 1 to 3 of Schedule 1 to the Pensions Act; . . .
(3) On and after 6 April 1979 those sections shall continue in force in the modified form in which they are set out in Schedule 1 to these regulations, ..."
Section 36 of the 1965 Act in its modified form is duly set out in Schedule 1 to these regulations. I quote its most material parts:
"(1) Subject to the provisions of the Act, graduated retirement benefit shall be payable to any person who is over pensionable age and who (except as mentioned in section 37(1) below) has retired from regular employment, and shall be an increase in the weekly rate of his retirement pension equal to 5.39 pence for each unit, ascertained in accordance with subsections (2) and (3) of this section, of the graduated contributions properly paid by him as an insured person, the result being rounded to the nearest whole penny, taking 1/2p as nearest to the next whole penny above
. . . .
(9) This section and section 37 below and the Act shall be construed and have effect as if this section and section 37 below were included in Chapter 1 of Part II of [the 1975 Act] (contributory benefits) and references to that Chapter, that Part or that Act in any other enactment or in any instrument shall be construed accordingly: ..."
The equivalent version of section 36(9) of the 1965 Act appearing in SI 1975/557 did not contain the phrase "in any instrument". In short, the appellants' contention is that the amended version of section 36(9) of the 1965 Act included in SI 1978/393 makes it necessary to read the reference to "any benefit under Chapters I and II of Part II of the Act" in regulation 4(1)(b) of SI 1979/642 as including a reference to GRB. If that contention is right, GRB is an excluding benefit for the relevant purposes and the appeal must succeed. If it is wrong, it must fail.
Counsel for the appellants have submitted that the deemed incorporation in the 1975 Act of sections 36 and 37 of the 1965 Act ("sections 36 and 37") effected by SI 1978/393 must take effect for all purposes (including that of deciding questions of entitlement to other benefits such as an increased rate of Category B pension) unless there is some clearly expressed limitation on such incorporation. In their submission, there is no such limitation. In particular, it is said, contrary to the view of the Commissioner, regulation 3(1) of SI 1978/393 does not have this effect. The new version of section 36(9) states that references to Chapter I of Part II of the 1975 Act "in any other enactment or in any instrument" shall be construed as if sections 36 and 37 were included within that chapter. This version expresses no limit to the purposes for which such construction should be adopted and, it is said, any such limit would be inconsistent with the broadly expressed references to any other enactment or any other instrument (of which SI 1979/642, which defines "days of increment" for the purpose of Category B pensions, is one).
At least some superficial support for the submission that the deemed incorporation of sections 36 and 37 in the 1975 Act must take effect for the purpose of construing regulation 4(1)(b) of SI 1979/642 is to be derived from the fact that that statutory instrument is at least in part of a consolidating nature and that the predecessor of regulation 4(1)(b) was regulation 4(1)(b) of the Social Security (Widow's Benefit and Retirement Pensions) Amendment Regulations 1978, SI 1978/392, in identical terms. SI 1978/392 and SI 19781393 were both made on 9 March 1978, laid before Parliament on 16 March 1978 and came into operation on 6 April 1978. It is perhaps a fair presumption that the draftsman of regulation 4(1)(b) of SI 1978/392 would have been aware of the provisions of the synchronous SI 1978/393.
While initially I was inclined to attach weight to this point, I do not on reflection think that it carries the matter much further. The all important points, it seems to me (as it seemed to the Commissioner), are these. The regulation which provides for the deemed incorporation of sections 36 and 37 of the 1965 Act in the 1975 Act is regulation 3 of SI 1978/393. That regulation not only unambiguously states the purpose of the provisions of the regulation (in paragraph 3(1)), but also (in paragraph 3(2)) explicitly states that sections 36 and 37, as thereby modified, shall continue in force "for the purpose aforesaid". The "purpose aforesaid" is simply that of:
"... securing continuity between the [1975] Act and the 1965 Act in the case of persons who had, immediately before 6th April 1975, rights or prospective rights to or expectations of graduated retirement benefit under sections 36 and 37 of the 1965 Act, by preserving those rights and temporarily retaining the effect of those sections for transitional purposes".
Regulation 3 did not state that the continuation in force of section 36(9), (and the deemed incorporation of sections 36 and 37 in Chapter I of Part II of the 1975 Act thereby provided for), should take effect for all purposes, or for the purpose of affecting the right to benefits other than GRB. And indeed, if it had done so, I think this would have been beyond the powers pursuant to which the regulation was made.
Counsel for the appellants submitted that the references to "purpose" in regulation 3(1) and 3(2) were included simply to explain the reason why Parliament was preserving section 36, but not so as to impose any limit on the effect of its deemed incorporation in the 1975 Act. I am unable to agree. If a statute or statutory instrument contains limiting words declaring in terms the purpose for which it is made, the court should if possible give an effective meaning to those limiting words: (compare Ingle v. Farrand [1927] AC 417 at page 423 per Viscount Cave LC). It is a well known principle that, unless there is good reason to the contrary, an effective meaning should be given to every word in a statutory provision in preference to a construction which involves attributing to Parliament the use of superfluous language: (see for example Hill v. William Hill (Park Lane) Ltd [1949] AC 530 at pages 546-7, 552 and 567).
For these reasons, I for my part would accept the proposition advanced by Mr. Rowland in his admirable argument for the claimant that, having regard to the stated purpose of regulation 3 of SI 1978/393, the version of section 36(9) contained in the schedule to that regulation (and the deemed incorporation of sections 36 and 37 of the 1965 Act in Chapter I of Part II of the 1975 Act thereby provided for) must be read as intended to relate only to cases when questions of entitlement to GRB arise and not to relate to the consequences of the receipt of GRB for the purposes of determining entitlement to other statutory benefits. It is common ground that the draftsmen of SI 1978/392 or of its successor SI 1979/642, if they had so intended (I am far from sure that they so intended) could properly have worded them so as to provide that a day in respect of which the claimant had been in receipt of GRB was not to qualify as a day of increment. If that was their intention, however, in my judgment the formula "any benefit under Chapters I and II of Part II of the 1975 Act" was not appropriate to give effect to it and the provisions of regulation 3 of SI 1978/393 relating to a quite different benefit did not render it appropriate.
These conclusions, which I think substantially accord with the reasoning of the Commissioner in his careful decision, more or less dispose of this appeal. Before concluding, however, I should perhaps refer to two further arguments advanced by counsel for the appellants.
First, it was submitted that even if, contrary to their primary submission, the words of regulation 3 are to be read as imposing the suggested limit on the purpose of the deemed incorporation of sections 36 and 37 in Chapter I of Part II of the 1975 Act, that limited purpose would not be breached by the effect which the appellants ascribe to that regulation. SI 1978/393 provides for the continuity of payment of GRB and the appellants' arguments as to the applicability of section 36(9), if accepted, would in no way derogate from such continuity; their arguments relate to the effect of continuity of payment of GRB on the rate of Category B retirement pension. Regulation 3(1), it is pointed out, says nothing about the consequences of continued payment. It is not inconsistent with the fulfillment of the regulation 3(1) purposes, so the argument runs, that it should affect the payment of other benefits.
SI 1978/393 may perhaps be regarded as including in substance a definition of "benefit under Chapters I and II of Part II of the 1975 Act". It would have been open to the draftsman of SI 1979/642 explicitly to adopt that definition by reference; but he did not do so. In these circumstances the appellants have to rely, and do rely, on SI 1978/393 as having a direct operative force of its own in relation to SI 1979/642 and, by virtue of such operative force, eliminating the entitlement to increased Category B retirement pension to which the claimant would otherwise have been entitled under SI 1979/642. In these circumstances, it seems to me clear that the appellants' contention would involve ascribing a purpose to SI 1978/393 beyond that of providing for the continuity of payment of GRB.
Finally, counsel for the appellants submitted that if their primary contention as to the construction of regulation 3 were rejected:
(a) still it was not clear that the claimant's construction of that regulation is the correct one;
(b) the decision of the House of Lords in Ormond Investment Company v. Betts [1928] AC 143 shows that, where a regulation is ambiguous, it may in certain circumstances be permissible to have regard to later regulations to assist in ascertaining what Parliament meant;
(c) in construing regulation 3, assistance is to be derived from regulation 16 of the Social Security (Widow's Benefit, Retirement Pensions and Other Benefits) (Transitional) Regulations 1979 (SI 1979/643), which provides that in relation to certain women entitled to a Category B retirement pension, regulation 4(1)(b)(i) of SI 1979/642 shall not apply by reason only of the fact that the woman has received GRB:
(d) regulation 16 therefore creates a limited exception to regulation 4(1)(b)(i) which would be superfluous if all cases in which GRB was received were outside it.
It may be that the draftsman of SI 1979/643 regarded GRB as generally falling within regulation 4(1)(b)(i) of SI 1979/642 but in my judgment, having regard to the wording of the relevant regulations, his belief was erroneous and cannot affect the issues before this court. I agree with the Commissioner that the wording of regulation 3 of SI 1978/393 is unambiguous and we are not entitled to look at later statutory instruments so as to depart from its clear language. If the legislature in making regulation 4(1)(b)(i) of SI 1979/642, intended that the phrase "any benefit under Chapters I and II of Part B of the Act" should bear an extended meaning, beyond its ordinary and natural meaning, it should have so provided in clear terms, rather than relying on another statutory instrument which related to a different statutory benefit (GRB) and was made for the explicit purpose of preserving rights to that benefit.
For the reasons stated, notwithstanding the forceful submissions of counsel for the appellants, I would dismiss this appeal.
LORD JUSTICE STOCKER: I agree.
LORD JUSTICE PURCHAS: I also agree.
Order: Appeal dismissed, with costs, to be taxed if not agreed; leave to appeal granted.