UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CP_4762_2001 (05 November 2002)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Cardiff appeal tribunal, held on 26^th June 2001 under reference U/03/188/2001/00314, 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 the tribunal's chairman.
3. Miss Commissioner Fellner directed an oral hearing of this appeal. It was held before me in Cardiff on 29^th October 2002. The claimant attended. He was not represented, but he made his points clearly and politely. He had been represented at earlier stages of the proceedings. His representative at the time had provided a detailed argument on the Human Rights Act 1998. The Secretary of State was represented by Miss D Heywood of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to her for her clear and detailed arguments.

The history of the case

4. The claimant was born on 12^th December 1935. His pensionable age was 65. His 65^th birthday was on Tuesday, 12^th December 2000. He was entitled to a retirement pension. However, it was only awarded from and including 18^th December 2000. That was the Monday following his 65^th birthday. He was paid incapacity benefit in arrears until 11^th December 2000. He also had an occupational pension. So, he has some money on which to live until the next Monday. In fact, he has sufficient to bar his entitlement to income support. Nevertheless, as far as the claimant is concerned, he has lost retirement pension for 6 days.

The domestic legislation

5. I deal first with the domestic 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.
6. 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, or at least of terminology, occurs.
7. 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.
8. Section 44(3) provides that the pension consists of a basic pension 'payable at a weekly rate' plus, in some circumstances, an additional pension. Entitlement is not stated to be acquired each day. Compare, for example, incapacity benefit (see section 30A(1) of the Social Security Contributions and Benefits Act 1992). Nor is there any provision for the apportionment of the weekly rate. Compare, for example, income support (see section 124(5) and (6) of the 1992 Act). Retirement pension is not unique in this respect. The same applies to child benefit (see section 141 of the 1992 Act).
9. Section 44(1) is subject to the provisions of the Act. In practice, this means that it is subject to section 44(2). This 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.
10. 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.
11. The relevant regulations are the Social Security (Claims and Payments) Regulations 1987. The relevant regulation is 16(1).
12. 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 in turn leads to Schedule 6 to the Regulations. 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. So, it is irrelevant here. The second and third apply to women. So, they are irrelevant here. The fourth and fifth deserve a mention.
13. 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. However, the fact remains that the Secretary of State has not exercised that power in this case.

14. 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.
15. So, as none of the exceptions applies, the benefit week for the claimant's retirement pension begins on a Monday.
16. 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. An earlier provision in the same terms was considered by the Commissioner in R(P) 2/73. He wrote in paragraph 7:

'The effect of the regulations was not merely to make the claimant's pension payable from [the following Monday], but to make it commence from [that date].'

This is important. The law is not that the claimant became entitled to a retirement pension from his 65^th birthday, but was deprived of payment of it until the following Monday. The effect of regulation 16(1) is that the claimant did not become entitled to his retirement pension until 18^th December 2000.

17. 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. And when he became entitled, that entitlement began only with effect from that Monday. It did not begin with retrospective effect from his 65^th birthday.

The jurisdiction issue

18. The domestic law could have been expressed more clearly. But its interpretation is not open to doubt. Its application does not allow of discretion. There is nothing for a claimant to appeal against. So, it is not surprising that legislation bars appeals being made.
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.

20. I am surprised that this point has not been taken. The Secretary of State put the case to the appeal tribunal as a 'misconceived appeal' – in other words, one which was 'obviously unsustainable' with 'no prospect of success': see the definition in regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The jurisdiction point was not taken. The tribunal conducted a full hearing. On appeal to the Commissioner, the point was not taken in the Secretary of State's written observations on the appeal. Nor was it taken by Miss Heywood.
21. However, an appeal tribunal exercises, as its name conveys, an appellate jurisdiction. All appellate jurisdiction is statutory. An appellate body has no jurisdiction beyond what is given to it by legislation. That jurisdiction cannot be extended by consent of the parties or at the discretion of the appeal tribunal. The tribunal has no jurisdiction to hear this appeal.

Human rights law

22. The claimant has relied on arguments under the Human Rights Act 1998.
23. Strictly these arguments do not arise. The tribunal had no jurisdiction to hear this appeal. It follows that it had no jurisdiction to deal with the human rights issues that were raised on the appeal. However, I will deal with the arguments, as the tribunal did, out of courtesy to the claimant.

Article 1 of Protocol 1 to the Convention

24. This provides:

'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 the conditions provided for by law and by the general principles of international law.'

25. Miss Heywood accepted that a retirement pension is a possession, but argued that the claimant had not been deprived of any part of it. I accept that argument. It follows from my analysis of the domestic law. Although the concepts and terminology could have been more consistently deployed in the domestic legislation, its effect is clear. The claimant's entitlement to a retirement pension did not begin until 18^th December 2000. When it began, it began with effect from that date. In other words, the claimant's possession was a retirement pension with effect from 18^th December 2000. He had no entitlement to a pension before that date. He was not deprived of anything.
26. This conclusion is supported by the recent decision of Mr Commissioner Turnbull in CP/5084/2001. I respectfully agree with that decision. The principle he applied can conveniently be called the biro principle. A biro eventually runs out of ink, but when it does, the owner is not deprived of a possession. The reason is that the owner bought the pen with only a limited supply of ink. The same is true of a retirement pension or any other contribution-based social security benefit. The claimant and his employer bought his retirement pension by their national insurance contributions. What they bought began only from the Monday following the claimant's 65^th birthday. The law gave the claimant nothing before that date. He was deprived of nothing.
27. Just for the record, Miss Heywood argued that if the claimant was deprived of a possession, it was in the public interest to do so. I reject that argument. The legislation has nothing to do with the public interest. It is regularly justified in letters by Ministers to MPs and their constituents. The basis for the justification is administrative convenience. That explanation does not stand scrutiny. As the claimant pointed out, it may be administratively convenient not to pay him until the following Monday, but there was no consideration of administrative convenience why he could not then have been paid with effect from his 65^th birthday. The truth is that this rule has nothing to do with administrative convenience.

Article 8

28. This provides:

'1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'

29. The application of this Article was considered by Mr Justice Wilson in the Administrative Court in R on the application of Reynolds v Secretary of State for Work and Pensions (7^th March 2002) [2002] EWHC 426 (Admin). The issue in that case concerned the different levels of payment of a jobseeker's allowance, which varied according to the age of the claimant. The court decided (paragraph 39) that 'the broadly worded principle in Article 8' was not 'apt to a challenge to the level of a social security payment.' That reasoning applies equally to a failure to provide entitlement for the 6 days after the claimant attained pensionable age.
30. Also, I notice that the claimant was not left without income to cover his expenditure during the 6 days. He received incapacity benefit until his 65^th birthday. This was paid in arrears under regulation 24(1) of the Social Security (Claims and Payments) Regulations 1987. It covered his expenditure until payment of retirement pension began from the following Monday. Payment was made in advance under regulation 22(1) of the 1987 Regulations. The claimant would also had an occupational pension which provided him with income during the 6 days. If it had not been for that pension, he might have been entitled to income support for those days. If the claimant had been in work immediately before he attained pensionable age, he would have had his last payment of wages to cover expenditure until his retirement pension began.

Article 14

31. This provides:

'The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, religion, political or social origin, association with a national minority, property, birth or other status.'

This Article, as it states, only applies to protect the enjoyment of other rights and freedoms. It is not necessary for there to be a violation of one of the other Articles. It is sufficient that the case falls within the ambit of another Article. In this case, the Secretary of State accepts that the claimant's retirement pension is a possession for the purposes of Article 1 of Protocol 1. That suffices to allow me to consider Article 14.

32. In R(P) 2/73, the Commissioner wrote (paragraph 8):

'No doubt the effect of making a benefit run from week to week rather than from day to day is that a few days' benefit may be lost in certain cases. But to describe this as discrimination against claimant, in respect of their anniversary of birth, is, with respect, far-fetched.'

Under the Human Rights Act 1998, a more detailed analysis is necessary.

33. One discrimination argument was based on the decision of the Edinburgh social security appeal tribunal of 13^th November 1996 in the case of Ronald Maiden. This case has received wide publicity. The tribunal decided that the claimant was entitled to payment of his retirement pension from his 65^th birthday. Based on this, the claimant's representative argued that there was discrimination depending on whether the case was dealt with in Scotland or elsewhere in Great Britain. I reject that argument. The simple fact is that the tribunal's decision in Maiden was wrong in law.
34. Miss Heywood argued that the day on which a particular anniversary of a claimant's birth happens to fall was not a 'personal characteristic' for the purposes of Article 14 (see Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 European Human Rights Reports 711 at paragraph 56). I reject that argument. The day on which a particular anniversary falls is a direct consequence of the day on which the person was born, which is but another way of referring to their age.
35. However, the difference in treatment is not discrimination within Article 14. States are allowed a margin of appreciation in the application of the Convention rights. There are three factors that are relevant in determining whether the difference of treatment in this case falls within that margin. First, at most only 6 days benefit are involved. Second, the claimant will have income to cover those days. That may be provided from the final payment of another benefit that is paid in arrears or from income support. Third, the legislation involves 'the deployment of limited funds' (see Lord Mustill in Secretary of State for Social Security v Fairey [1997] 3 All England Law Reports 844 at page 850).
36. Financial decisions on benefits comprise an area of law in which it is proper to allow a margin of freedom of action to those responsible for the public finances. The difference in treatment affects at most 6 days of entitlement during which the claimant has access to other funds. Those circumstances are comfortably within the margin of appreciation that is appropriate for the democratic institutions to retain.

Conclusion

37. Under domestic law, the claimant was not entitled to a retirement pension until 18^th December 2000, the Monday following his 65^th birthday. That law in not in violation of any of his Convention rights under the Human Rights Act 1998. Domestic law allows him no right of appeal against the decision. Strictly, the tribunal should have decided that it had no jurisdiction to hear the appeal. Instead, it conducted a full hearing of the points raised, including the arguments under the Human Rights Act 1998. It then dismissed the appeal. I should set aside that decision and substitute the one that it should have given, that it had no jurisdiction. But that would be an empty exercise. The effect would be the same so far as the claimant is concerned. I am content to decide instead that the tribunal did not go wrong in law.

Signed on original

Edward Jacobs Commissioner 31st October 2002