UK Social Security and Child Support Commissioners' Decisions

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Cite as: [2008] UKSSCSC CP_1183_2007

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CP/1183/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal by the Claimant, brought with the permission of a legally qualified panel member, against a decision of an appeal tribunal sitting at Fox Court, London on 12 September 2006. For the reasons set out below I dismiss the appeal.

The Claimant is a man who attained the age of 60 on 23 September 2006. The Tribunal's decision was to dismiss the Claimant's appeal against a decision of the Secretary of State, made on 29 March 2006, that the Claimant would not become entitled to a state retirement pension when he attained 60 (the state retirement age for women born before 6 April 1950), but only when he attained 65, the state retirement age for men.

The grounds for the Claimant's appeal are that the refusal to pay him state retirement pension from age 60 infringed (a) the following provisions of the European Convention on Human Rights: (i) Article 1 of Protocol 1 ("A1P1") (ii) A1P1 in conjunction with Article 14 (iii) Article 8 (iv) Article 8 in conjunction with Article 14; and (b) provisions of EC law.

The different retirement ages for men and women, and the provisions for gradual equalisation of the retirement age so that it becomes 65 for both men and women, are contained in primary legislation. I refer to the summary in paragraph 10 of the Tribunal's Statement of Reasons.

The Claimant's arguments before the Tribunal were based on discrimination on the ground of gender. The Claimant did not, I think, put forward before the Tribunal an argument based on an infringement of A1P1 or Article 8, taken on their own (i.e. not in conjunction with Article 14).

So far as the Claimant's argument based on Article 14 is concerned, I agree entirely with the Tribunal's reasoning in paragraphs 14 to 17 of the Statement of Reasons. I would pay tribute to the clarity and thoroughness of that Statement. For those reasons the challenge based on Article 14 must fail. Although the Tribunal's reasoning was directed to a challenge based on Article A1P1 in conjunction with Article 14 (because that was the argument which had been put to the Tribunal), the same reasoning in my judgment defeats a challenge based on Article 8 in conjunction with Article 14.

As far as A1P1 on its own is concerned, that Article is concerned with the peaceful enjoyment of a person's existing possessions: it does not guarantee a right to acquire possessions. It is clear on the authorities that it does not guarantee entitlement to a pension of any particular amount or at any particular time. In the Carson and Reynolds cases [2003] 3 All ER at 577 at [17] to [23] Laws LJ, with whom Rix and Simon Brown LJJ agreed, applied the consistent Strasbourg jurisprudence that there is no infringement of A1P1 where the reason why the claimant was not entitled to a pension was that he did not satisfy the conditions of entitlement under domestic law. Thus, in X v Italy (1977) 11 DR 114 the European Commission on Human Rights rejected as manifestly ill-founded a claim of infringement of A1P1 because the applicant had not satisfied the requirements under domestic law for payment of a pension. Laws LJ concluded (at [23]) that the argument based on A1P1 "involves the proposition that A1P1, at least in some circumstances, confers a right to acquire property. But that is contradicted by the plain words of the article and by the learning in Strasbourg …" (In the House of Lords in Carson and Reynolds the case of the claimants based on A1P1 alone (as opposed to Article 14 in conjunction with it) was not pursued, and the decision of the House of Lords therefore adds nothing to the Court of Appeal's decision in this particular respect). In R(P) 1/06 I held that, for this reason, the limit of 3 months on backdating of a claim for state retirement pension did not infringe A1P1 taken on its own. The Claimant says in his submission in reply that "I seek my pension at the age of 60 as of my right for which I paid for years and not a "financial support."" However, the national insurance contributions which he paid were of course paid on the basis that he would receive a state retirement pension at 65, not at 60.

Article 8 provides that "everyone has the right to respect for his private and family life, his home and his correspondence." In his submission at p.47 the Claimant says that the refusal to pay him a pension at 60 infringes Article 8 because (1) the statutory scheme does not respect his qualify of private life because it denies him the opportunity to move in order to live in a warmer and drier climate within the EU for the relief of pain associated with current chronic illnesses and forces him to live in a climatically hostile and expensive environment; and (2) the scheme does not respect his family life because his wife's state pension has been delayed because, even though she attained the age of 60 on 11 July 2007, it is dependent on his pension being payable.

However, it is in my judgment clear that there cannot be argued to have been an infringement of Article 8. I would refer to what Laws LJ said at [26] in the Carson case:

" …..on the Strasbourg learning art 8 does not require the state to provide a home: see Chapman v UK (2001) 10 BHRC 48 at 72 (paragraph 99); nor does it impose any positive obligation to provide financial assistance to support a person's family life to the full or in any particular manner: see Vaughan v UK App No 12639/87 (12 December 1987, unreported), Anderson and Kullmann v Sweden (1986) 46 DR 251, Petrovic v Austria (2001) 33 EHRR 307 at 319 (paragraph 26)."

In any event, even if a breach of the Convention could be established, for the reasons set out in paragraph 11 of the Statement of Reasons there is no remedy which the Tribunal could have given (or which I on appeal from the Tribunal could give).

The Claimant's argument based on EC law must in my judgment also fail, for the reasons given in paragraphs 19 and 20 of the Tribunal's Statement of Reasons.

(signed on the original) Charles Turnbull

Commissioner

12 March 2008