UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CP_2055_2003 (23 September 2003)

 


CP 2055 2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the appeal.
2. The claimant and appellant is appealing with permission of a chairman against the decision of the Leicester appeal tribunal on 25 February 2003 under reference U 42 038 2003 00223.
3. For the reasons below, the decision of the tribunal is set aside. At the invitation of the secretary of state's representative, I take the decision that the tribunal should have taken. This is:

The appeal is referred to the Secretary of State. The Secretary of State is directed to refer the question of the appellant's entitlement to a guaranteed minimum pension to the Board of Inland Revenue for decision.

The Secretary of State is further directed that, on receipt of the decision of the Board, he is to follow the same procedure as is provided in regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

4. This is an appeal by the claimant against the determination that his weekly retirement pension is £77.75 from 2 October 2001. That included basic retirement pension, additional pension less a contracted out deduction, further additional pension not subject to a deduction, and graduated retirement benefit.
5. The claimant received a "statement of entitlement" from the Inland Revenue in form CA 1627 in July 2001 and a decision from the Benefits Agency in August 2001. He appealed promptly following receipt of the Benefits Agency letter. The Inland Revenue letter did not indicate that the claimant had any rights of appeal. The papers suggest that officials were somewhat at a loss to know how to handle the appeal as it was specifically targetted on the decision about the additional pension. The details were finally sent to the claimant in August 2002, and he promptly indicated that he wished to proceed with his appeal.
6. The appeal came before a tribunal in February 2003. The claimant was present. In a short statement the tribunal dismissed the appeal on the grounds that the law as set out in the submission to the tribunal was correct and had been correctly applied.
7. The secretary of state's representative agrees that the law was not correctly set out in the submission to the tribunal and that the tribunal also erred in law. In particular, that submission ignores decisions of my own and of deputy Commissioner Street directly in point in the appeal. Those decisions are the provisional decision in CP 4479 2000, CP 2366 2001, and CP 2563 2001. They are in the papers, CP 4479 2002 in its final form.
8. CP 4479 2000, paragraphs 28 to 30 deals with the duty of the Inland Revenue to make a formal decision on graduated retirement pensions. The Inland Revenue is subject, in its decision making, to the duties imposed under the Social Security and Child Support (Decisions and Appeals) Regulations 1999. It must make a decision and it must notify it to the claimant accompanied by notification of the rights of appeal: Social Security and Child Support (Decisions and Appeals) Regulations 1999, regulation 28 (expressly amended to deal with decisions of this sort). The decision is made under section 170(2) of the Pension Schemes Act 1993 as amended by section 16 of the Social Security Contributions (Transfer of Functions) Act 1999. The statement of entitlement issued to the claimant does not meet those requirements. In particular, it is conspicuously silent, as compared with the similar Benefits Agency notification, about rights of appeal. So is the leaflet IR20 to which the claimant was at that time referred. If the Revenue has taken a decision, it is ineffective.
9. I set out what should happen in a case where an appeal arises in which the Revenue has failed to take a proper decision on a pension issue at paragraph 30 of my decision. The Secretary of State and tribunal are to act in the same way as they would if a question arose within the scope of regulations 11A and 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Deputy Commissioner Street in her decision both endorsed that approach and added that claimants could themselves also demand a formal decision. As I indicated in CP 2563 2001, while it does not remove the duties on the official bodies involved, I am sure that that is also right.
10. The secretary of state's representative agrees that the tribunal should have been asked to follow the regulation 38A procedure in this case. I direct accordingly.
11. For the benefit of the claimant, the matter will now go to the Inland Revenue for a formal decision to be made about the amount of guaranteed minimum pension. It is only the amount determined by the Revenue that can be deducted from the additional pension entitlement. The Revenue must issue a formal decision about that, and there are rights of appeal against that decision about which the Revenue must inform claimants. Once that decision is made (and any appeal decided) the matter goes back to officers of the Secretary of State for Work and Pensions to decide total additional pension. At that point, the Secretary of State must decide whether the decision under appeal should be revised, or a new supersession decision issued. If it is revised, or if a new decision is made, then there are new rights of appeal against the revised decision or the new decision. If it is not revised and no new decision is made, then this appeal will be referred back to a new tribunal for final decision. At that point, as well as with the Revenue, the claimant can raise his points about getting the sums right. I regret that I cannot direct that they be decided now, and that this will add another layer of delay to an appeal that has already been in the appeal system for over two years.
12. The claimant is also raising the point that the pension he is paid does not match the pension prediction he was given. He cannot appeal that to a tribunal either by the Revenue's formal decision or the Secretary of State's formal decision. If he feels aggrieved that he was misinformed and has suffered financial loss due to maladministration, then his remedy is to take it up directly with the department who made the prediction, and if necessary with his member of parliament.

David Williams

Commissioner

23 September 2003

[Signed on the original on the date shown]