UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CP_2083_2001 (02 October 2002)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Stockport appeal tribunal, held on 22^nd March 2001 under reference U/40/125/1999/01150, is not erroneous in point of law.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the tribunal brought by the claimant with the leave of Mr Commissioner Henty. The Secretary of State does not support the appeal.

The history of the case

3. The claimant was awarded a retirement pension by the Secretary of State from and including Monday, 13^th December 1999. The claimant appealed against that decision to the tribunal on the ground that his 65th birthday was on Wednesday, 8^th December 1999 and his retirement pension should have been awarded from that date.

The legislation

4. This case raises an issue of jurisdiction. However, before dealing with that, I deal with the legislation governing payment of retirement pension so that the claimant may understand why payment did not begin until the Monday following his 65^th birthday.
5. In order to understand the legislation, it is necessary to know something of the concepts that it uses. The social security legislation distinguishes between entitlement to a benefit and the payability of the benefit. Benefit can never be payable unless the claimant is entitled to it. Usually, a benefit is payable for the whole of the period during which the claimant is entitled to it. In some cases, however, benefit is not payable despite the fact that the claimant is entitled to it. Sometimes, the legislation mixes its concepts and refers to entitlement to payment. The legislation governing entitlement to retirement pension is an example where this mixing of concepts occurs.
6. Section 44(1) of the Social Security Contributions and Benefits Act 1992 provides that a claimant becomes entitled to a Category A retirement pension on the day on which he attains pensionable age. This is subject to the provisions of the Act.
7. In practice, this means that it is subject to section 44(2), which provides that the retirement pension is not payable for any period before the day on which entitlement for the purposes of payment is regarded as beginning by virtue of section 5(1)(k) of the Social Security Administration Act 1992.
8. Section 5(1) contains provisions enabling regulations to be made. Section 5(1)(k) enables the making of regulations to provide for the day on which entitlement to a benefit is to begin or end.
9. The relevant regulations are the Social Security (Claims and Payments) Regulations 1987. The relevant regulation is 16(1).
10. In order to understand how this regulation works, it is necessary to know the day on which the benefit week for the claimant's retirement pension begins. Regulation 16(3)(c) provides that the benefit week begins on the day on which the retirement pension is payable. This leads to regulation 22(3), which provides that Schedule 6 to the Regulations determines the day on which retirement pension is payable. Paragraph 5 of that Schedule provides that retirement pension is payable on a Monday. This is subject to five exceptions. The first applies where entitlement began before 28th September 1984, which is not the case here. The second and third apply to women. The fourth and fifth deserve a mention.
11. The fourth exception provides that

'the Secretary of State may, notwithstanding anything contained in the foregoing provisions of this paragraph, arrange for retirement pension to be payable on such other day of the week as he may in any particular case determine.'

The Secretary of State has not done that it this case. Indeed, I have been told in another case that the official view is that the purpose of this exception

'is to empower the Secretary of State to alter the Retirement Pension Pay-Day on a national basis, should he consider it necessary, without the need to seek amending legislation.'

See CP/16974/1996, paragraph 12, which contains my comments on that view.

12. The fifth exception provides that once a day has become the day on which a benefit is paid that day remains the day for payment. This would only apply in this case if the day on which the claimant's retirement pension was payable was set as some day other than a Monday. There is no provision under which this could be done.
13. So, as none of the exceptions applies, the benefit week for the claimant's retirement pension begins on a Monday.
14. Regulation 16(1) provides that if entitlement to a retirement pension would not otherwise begin on the first day of the benefit week, entitlement for the purposes of payment does not begin until the first day of the next benefit week.
15. Restated in terms of the facts of this case, this means that, as the first day of the claimant's entitlement to retirement pension under section 44(1) was not a Monday, he was not entitled to payment until the following Monday.

The jurisdiction issue

16. So, the Secretary of State's decision was correct. However, did the tribunal have jurisdiction over it? It decided that it did not. Was that correct?
19. Before the Social Security Act 1998 came into force, these decisions were appealable. However, the law has been changed under that Act. The relevant legislation is regulation 27 of, and Schedule 2 to, the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Regulations 27 provides:

'(1) No appeal lies to an appeal tribunal against a decision set out in Schedule 2.

(2) In paragraph (1) and Schedule 2, "decision" includes determinations embodies in or necessary to a decision.

(3) An appeal made against a decision specified in paragraph (1) may be struck out in accordance with regulation 46.'

Paragraph 5 of Schedule 2 covers

'A decision of the Secretary of State under the Social Security (Claims and Payments) Regulations 1987 except a decision under-'

There then follows list of exceptions in which an appeal does lie. The provisions governing the date of entitlement to payment of a retirement pension are not among those exceptions. So, the Secretary of State's decision was not appealable. The tribunal had no jurisdiction to hear the claimant's appeal. Indeed, instead of allowing the claimant a hearing, the appeal could have been struck out under regulation 46.

European law

20. The claimant has relied on arguments under the Human Rights Act 1998. I reject those arguments for two reasons.
21. First, the tribunal had no jurisdiction to hear his appeal. It follows that it had no jurisdiction to deal with the human rights issues that he raised on the appeal.
22. Second, the decision to award his retirement pension only from the Monday following his 65^th birthday was made before the Human Rights Act 1998 came into force on 2^nd October 2000. So, even if the tribunal had had jurisdiction to hear his appeal, it would have had to reject these arguments: see the decision of the House of Lords in R v Kansal (No 2) [2002] 1 All England Law Reports 257.

Signed on original

Edward Jacobs Commissioner 2nd October 2002