Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CP 802 2009

ADMINISTRATIVE APPEALS CHAMBER

CC v SSWP (RP and credits)

DECISION

For the reasons below, the decision of the tribunal is set aside. I replace the decision with the decision that the tribunal should have taken. This is:

Appeal adjourned. The question of the date when the appellant’s reduced rate election as a married woman ended is to be referred to the National Insurance Contributions Office of Her Majesty’s Revenue and Customs in accordance with the directions below.

Directions

1 A full set of the papers in this appeal, with the appellant’s National Insurance number, are to be sent to:

Peter Rooney, HMRC, National Insurance Contributions Office, Room BP2301, Benton Park View, Longbenton, Newcastle upon Tyne NE98 1ZZ

2 The National Insurance Contributions Office is asked to decide on the date on which the appellant’s election for reduced rate contributions ended following her divorce from her first husband. It is directed to inform the Upper Tribunal Office of any decision it makes at the same time as informing the appellant.

REASONS FOR DECISION

1 The appellant, Mrs C, made a claim for retirement pension on 16 02 2007. She was notified of an award of state pension, including basic retirement pension at the rate of £49.76 weekly. This was based on a 57 per cent contribution record. She objected to that decision, appealing on several grounds. After an exchange of correspondence, all but one of those points were resolved. The remaining point relates to the contribution years 1981 to 1984 when she was a student and during which she contends that she signed on at the unemployment office to protect her contribution position. This then became intertwined with a question about her election to pay the reduced married women’s rate of contributions and her subsequent divorce and remarriage.

2 The standard computer download from the National Insurance Contributions Office (“NICO”) shows no NI contributions or credited earnings for her in any of the tax years 1981 to 1984. An intermittent and somewhat confusing correspondence between Mrs C, the Pension Service acting for the Secretary of State, and NICO followed the provision to Mrs C of her NI contribution record. That confusion is compounded in this appeal by the random date order in which papers appear in the bundle given to the tribunal below and now to me. The final two documents are:

(a) an additional submission to the first tier tribunal from the Pension Service. This submits that Mrs C elected to pay reduced rate contributions as a married woman in 1966 and that this ended on 5 04 1983; and

(b) a letter in response from Mrs C contending that she signed on at the Lewisham office to protect her credits and that she was divorced and remarried in 1981 so ending her reduced rate election in 1981.

The tribunal decision

3 The appeal went to the tribunal for a paper hearing. The tribunal disallowed the appeal and confirmed the original decision of the Secretary of State. That is wrong. It ignores the additional submission to the tribunal from the Pension Service just noted. There is a letter from the Pension Service to Mrs C dated 16 08 2007 retrospectively increasing her weekly pension from the start of her award of state pension. That appears to be a revision to the award of her pension although it is not identified as such. It follows a letter from NICO on 4 07 2007 apologising to Mrs C that there had been an error in previous calculations of her pension entitlement and increasing the award of additional pension. The tribunal decision must be set aside in order to take this revision into account. Were that the only error, it could be dealt with by correcting the tribunal’s decision. The tribunal was notified of the revision and did not challenge it. Nor did the appellant. That issue is not now in dispute.

The issues in dispute

4 Mrs C continues to challenge the effect on her basic weekly pension entitlements arising from her reduced rate election and student status. This raises two questions of law:

(a) on what basis, and by whom, is it to be decided when Mrs C’s reduced rate election ended?

(b) if it is relevant, on what basis, and by whom, is it to be decided whether Mrs C should have been credited with contributions while signing on from 1981?

Reduced rate election

5 Although Mrs C asked for a paper hearing, and did not attend, the tribunal held a hearing at which a presenting officer for the Secretary of State appeared. The presenting officer submitted that the main issue in the appeal was that Mrs C had opted for reduced rate contributions and had not changed that election, in the view of the Secretary of State, until 1984. The tribunal accepted this. The tribunal therefore considered her claim to be entitled to credited earnings while a student irrelevant.

6 I do not understand the submission or the tribunal decision that Mrs C was subject to a reduced rate election until 1984. The records put in evidence to the tribunal clearly state a “liability end date” of 05 04 1983 (see the additional submission at [4](a) above). I see no conflicting evidence. If so, then on the tribunal’s own analysis it still had to consider her status from April 1983.

7 More fundamentally, the tribunal was wrong in law to consider the matter at all. This is one of those pension contribution cases where the power to decide is divided between the Pension Service and NICO. When that happens, the power to decide appeals is usually also divided, now between the Social Entitlement Chamber and the Tax Chamber of the First-tier Tribunal. The relevant powers and jurisdictions need to be identified.

8 The law about reduced rate elections relevant to the period in question is in the now repealed provisions of regulations 99 to 104 of the Social Security (Contributions) Regulations 1979 (SI 1979 No 971). My understanding of those regulations is that Mrs C is probably correct under the terms of regulation 101(1) of those regulations. An election was revoked by a divorce. The operative date of a divorce was the date of the decree absolute. But I cannot decide that. Nor can the tribunal below. A formal decision about a reduced rate election must be made by NICO and on appeal by the Tax Chamber of the First-tier Tribunal.

9 I must therefore allow the appeal by Mrs C on this issue also. I cannot decide the matter. In addition, there is no documentary evidence currently on the file, or on Mrs C’s contribution record, to establish that she was - as she asserts - divorced in 1981 nor when precisely that happened. I issued a draft of this decision to Mrs C ahead of finalising it. She informs me that she wishes a formal decision to be taken about the final date of her reduced rate election. I am therefore referring this to NICO with a request that this issue be decided. I do so following the procedure recently set out in SSWP v Thomas Beamish and HMRC (RP). My directions are at the head of this decision.

10 Mrs C submits that her decree absolute from the relevant marriage was issued in April 1981. She informs me that she cannot produce a copy of the decree as she lodged it with the Registry Office when applying to remarry. However, if she wishes this matter to be considered by NICO, she should obtain a further copy and send it to NICO (referring to this decision and giving her NI number as a reference). Decrees absolute of divorce in England and Wales are matters of public record. A central index is maintained by the Principal Registry of the Family Division at First Avenue House, High Holborn, London WC1V 6NP, from which a copy can be obtained. Full details, and the form to obtain a copy from the Principal Registry, are on www.direct.gov.uk.

Credited contributions

11 Mrs C’s appeal on that point will be of limited value even if she succeeds if in the outcome she cannot establish an entitlement to credited contributions for the period when she signed on and was a student. That is within my jurisdiction. I consider it on the assumption in Mrs C’s favour that she can establish both as a matter of law and on the facts her assertion that her reduced rate election ended in 1981. If so, it is necessary to decide if she was entitled to any credited contributions. This again involves going back to the relevant regulations that applied at that time. These regulations were the Social Security (Credits) Regulations 1975 (SI 1975 No 556).

12 At my direction Mrs C provided further details about her claim during that period.

Her evidence is that she signed on, as a married woman with the reduced rate election in operation, during term times from September 1980 to April 1981 as a student at Ruskin College, Oxford. She continued to sign on after her marriage ended (and, in her view, the reduced rate election ceased) during term times to September 1982 as a student at Ruskin College. From September 1982 to August 1985 she states that she was a student at Corpus Christi College, Oxford, and continued signing on in the same way. She stopped signing on when she started work at another college in September 1985. I make no findings of fact and merely record the evidence as she set it out in her submission. However, accepting her evidence for the purpose of argument, the question of law is whether she was entitled to NI credited contributions on that basis at that time.

13 A decision on credited contributions for education or for “signing on” is now for the Secretary of State for Work and Pensions. On appeal, it is now for decision by the Social Entitlement Chamber of the First-tier Tribunal and on further appeal by the Administrative Appeals Chamber of the Upper Tribunal. I examined the question of jurisdiction of tribunals in connection with credited contributions and credited earnings for unemployment in CP 1792 2007. There was no appeal against that decision and I adopt its reasoning here. This was that the appeal goes to the former social security tribunal – now the Social Entitlement Chamber – see section 8(1)(c) and section 12(1)(b) of the Social Security Act 1998 and Schedule 3, paragraph 17, to that Act. In my view that reasoning applies equally to decisions about starting credits and about training and education credits.

14 Mrs C claimed credited contributions because of her student status. She claimed that she signed on for unemployment benefit. Her claims conflate two kinds of credited contributions: those for periods of education or training, and those for unemployment. Mrs C was a mature student. At that time, under the 1975 Regulations, credited contributions were available to students after leaving school, but only for the two years after they reached 16. These were starting credits under regulation 4 of those Regulations, and were available for all benefits. Credits were also available under regulation 8 for those undergoing full time education or training. Those credits only applied to the short-term benefits (mainly then unemployment benefit) and not to long term benefits such as retirement pension. I add, though Mrs C has not raised this point herself, that she might also have been entitled at that time to credits under other regulations for a period following her divorce. That was for short term benefits only and cannot assist this appeal. It follows that Mrs C cannot succeed in her claim for credited contributions because she was a student.

15 Can she succeed if she establishes that she signed on for unemployment benefit? She can if she can meet the conditions of regulation 9 of the Social Security (Credits) Regulations 1975 as they applied to between 1981 and 1984. These are set out in the appendix to CP 1792 2007 (in the papers). Mrs C’s evidence is that she did sign on at the local unemployment office, so meeting the condition in regulation 9(7) of those regulations. That is a question of fact that remains to be decided. I will make directions for that when the decision on her reduced rate election has been made.

Conclusion

16 My conclusion is that two issues remain to be resolved:

(a) when Mrs C’s election to reduced rate ended, and

(b) whether in fact Mrs C met the conditions laid down in the Social Security (Credits) Regulations 1975 for the periods when she claims to have been signing on after the reduced rate election ended.

17 As Mrs C wishes a formal decision to be taken about the end of her reduced rate relief, this is referred to the National Insurance Contributions Office for decision. Pending that decision, this appeal must stand adjourned under Regulation 38A of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Once that decision, and any appeal from it, is determined, then a decision must be made on the outstanding issue with regard to the credited contributions.

18 Mrs C, in her final submission on this appeal, informed me that her husband reached state pensionable age on 13 06 2008, but sadly died soon after, on 11 11 2008. As she points out, this appeal therefore now applies only to the period to 13 06 2008 after which she has alternative bases on which to claim her retirement pension.

David Williams

Upper Tribunal Judge

24 03 2010

[signed on the original on the date stated]