THE SOCIAL SECURITY COMMISSIONERS
SOCIAL SECURITY ADMINISTRATION ACT 1992
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
CONVENTION ON SOCIAL SECURITY BETWEEN
THE GOVERNMENT OF THE UNITED KINGDOM AND
THE GOVERNMENT OF NEW ZEALAND
APPEAL FROM A SOCIAL SECURITY APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Mr Commissioner David Williams
9 November 1998]
Benefit : Retirement pension
Tribunal : Sutton
Date of hearing :
Tribunal case no :
The basis of claim
The decision under appeal
Directions to the new tribunal
Status of the Convention
Reciprocal agreements with countries outside the United Kingdom
179.-(l) For the purpose of giving effect-
(a) to any agreement with the government of a country outside the United Kingdom providing for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of legislation to which this section applies, or
(b) to any such agreement as it would be if it were altered in accordance with proposals to alter it which, in consequence of any change in the law of Great Britain, the government of the United Kingdom has made to the other government in question,
Her Majesty may by Order in Council make provision for modifying or adapting such legislation in its application to cases affected by the agreement or proposed alterations.
(2) An Order made by virtue of subsection (1) above may, instead of or in addition to making specific modifications or adaptations, provide generally that legislation to which this section applies shall be modified to such extent as may be required to give effect to the provisions contained in the agreement or, as the case may be, alterations in question.
Modification of the Social Security Act 1975
It follows that, so far as Britain is concerned, the full Convention takes effect and overrides inconsistent British internal social security legislation. If the claimant wishes to use the rights granted him under the Convention, he must do so subject to all the other provisions of the Convention. It is only if the Convention makes no specific provision that he can use the Social Security Acts themselves. Equally, if the Convention gives him rights, and imposes duties on others, he is entitled to those rights and the benefits of those duties on the basis that those rights and duties are granted or imposed by the authority of the Social Security Acts.
Article 1(1) contains the following definitions that are relevant in this case:
(h) "entitled to receive" means entitled to receive subject to any condition about giving notice or making a claim and to any earnings rule, retirement rule, means test or disqualification which may be appropriate;
(s) "usually resident" means, in relation to the United Kingdom , ordinarily resident ...
Article 1(2) provides:
(2) Other words and expressions which are used in this Convention have the meanings respectively assigned to them in the legislation concerned
The issues before the new tribunal
(A) when did the claimant claim a British retirement pension?
(B) was the claimant entitled to a pension as a result of his claim?
(C) from what date was the claimant entitled to a pension? (D) for what periods was he entitled to payment?
(A) When did the claimant claim?
(1) Any claim, notice or appeal which should, for the purposes of the legislation of one Party, have been submitted within a prescribed period to the insurance authority or the competent authority of that Party, shall be treated as if it had been submitted to that insurance authority or competent authority if it is submitted within the same period to an insurance authority or competent authority of the other Party.
(2) Any claim for benefit submitted under the legislation of one Party shall be deemed to be a claim for the corresponding benefit under the legislation of the other Party in so far as this corresponding benefit is payable in accordance with the provisions of this Convention.
(3) Any document submitted under the legislation of New Zealand may, where appropriate, be treated as a notice of retirement given under the legislation of the territory of the United Kingdom.
(4) In any case to which the provisions of paragraph (1), (2) or (3) of this Article apply, the authority to which the claim, notice, appeal or document has been submitted shall transmit it without delay to the competent authority or insurance authority of the other Party.
(B) Was the claimant entitled to a pension?
United Kingdom retirement pension by virtue of residence in New Zealand
(1) The provisions of this Article shall apply to persons in the United Kingdom who have been resident in New Zealand.
(2) Where a person is in, or resident in, the United Kingdom and at the time when he was last in New Zealand he was receiving national superannuation under the legislation of New Zealand, otherwise than by virtue of this Convention or the former Agreements, provided that he is over pensionable age as defined under the legislation of the United Kingdom he shall be entitled, subject to the provisions of paragraph (6) of this Article, to receive a basic retirement pension at the full standard rate under the legislation of the United Kingdom as if he satisfied the contribution conditions for such a pension...
(3) Subject to the provisions of paragraphs (4) and (6) of this Article, for the purpose of a claim for basic retirement pension under the legislation of the United Kingdom by a person to whom the provisions of paragraph (2) of this Article do not apply, a person in, or resident in, the United Kingdom shall be treated as if he, or in the case of a claim made by a married woman or widow by virtue of her husband's insurance, her husband, had paid a Class 3 contribution under the legislation of the United Kingdom for each week during which he was resident in New Zealand.
[(4) and (5) apply only to women]
(6) Any basic retirement pension which has become payable under the legislation of the United Kingdom by virtue of the provisions of this Convention or the former Agreements shall cease to be payable if and when the person to whom, or in respect of whom, the pension is payable leaves the United Kingdom, unless that person is usually resident in the United kingdom and his absence from the United Kingdom is only temporary.
Article 31 provides that:
(1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
(2) The context for the purpose of the interpretation of a treaty shall comprise in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
There is no statutory definition of what reside or resident means. Each case must be decided on its own facts. Whether a person is resident or ordinarily resident in GB is primarily a question of fact and degree
(Paragraph 20866, citing as authority IRC v Lysaght  AC 234)
AOs should refer to the dictionary definition of reside when deciding if a person is resident in GB.
(Paragraph 20870, citing R(F) 1/62; the paragraph then sets out the definition from the Shorter Oxford English Dictionary).
(C) From what date is the claimant entitled to a pension?
Where a person makes a claim -
(a) for retirement pension ... under the legislation of the United Kingdom within
twenty-six weeks after his last arrival in that country ...
[(b) applies only to claims in New Zealand]
and shows that, apart form satisfying the condition of making a claim, he was entitled, by virtue of the provisions of this Convention, to receive the benefit in question for any period between the date of his arrival and the date of his claim, arrears of benefit shall be payable for the period, subject to the provisions of article 15 of this Convention.
The phrase "entitled to receive" is defined in article 1(2). Article 15 deals with duplication of benefit rights between the United Kingdom and New Zealand and is not relevant here. Mr Heath argued, on behalf of the adjudication officer, that this article allowed late payment for the period back to the date of last arrival, but excluded late payment for any further period.
a person shall not be disqualified for receiving ... a retirement pension of any category or graduated retirement benefit by reason of being absent from Great Britain.
That is subject to limitations relating to additional pension and upratings, but these are not in issue in this appeal.
(D) For what periods is the claimant entitled to payment?
In a recent appeal before the House of Lords, Regina v Lambeth London Borough Council  2W.L.R.16 Lord Scarman went into the question of what was meant by ordinary residence in very great detail. He accepted the interpretation adopted in the 2 tax cases of 1928, namely Levene v Inland Revenue Commissioners  A.C.217 and Inland Revenue Commissioners V Lysaght  A.C.234 and stated at page 25E
"I agree with Lord Denning M.R. that in their natural and ordinary meaning the words mean "that the person must be habitually normally resident.., apart from temporary or occasional absences of long or short duration". The significance of the adverb 'habitually' is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes".
Later, at page 27C Lord Scarman went on to define 'settled purpose'. He said:
"And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All the requires is that there is a settled purpose. This is not to say that 'propositus' intends to stay where he is indefinitely, indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purposes of living where one does has a sufficient degree of continuity to be properly described as settled".
17 November 1998