Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CP/538/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The Secretary of State’s appeal is allowed.  I set aside the decision of the First-tier Tribunal dated 20 December 2010 and I substitute a decision that the claimant is not entitled to a Category B retirement pension from 4 June 2007 to 15 March 2009 but she is entitled to such a pension from 16 March 2009.

REASONS FOR DECISION

1. This case raises a short point as to what can constitute a valid claim.

2. The facts are not in dispute.  The claimant is a married woman who was awarded a Category A retirement pension from 4 August 2005.  Because she had gaps in her contribution record, the pension was awarded at only 39% of the standard rate.  On 25 March 2010, the claimant submitted a claim for a Category B retirement pension, based on her husband’s contributions.  Later, the date of claim was accepted as having been 15 March 2010 and the Secretary of State accepts that the claimant is entitled to a Category B retirement pension from 16 March 2009 (the next pay day), subject to an appropriate adjustment to take account of the Category A retirement pension already awarded.  That is clearly as much as could be awarded on the basis of a claim received on 15 March 2010, because section 1 of the Social Security Administration Act 1992 had the effect that making a claim was generally a condition of entitlement to a Category B retirement pension and the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) had the effect that a claim could be effective only for 12 months before it was actually received by the Secretary of State.

3. However, the claimant contended that she was entitled to a Category B retirement pension from 4 June 2007, which is the date on which her husband reached pensionable age and from which he was awarded a Category A retirement pension.  She appealed against the refusal of the Secretary of State to award a Category B retirement pension from 4 June 2007. 

4. The claimant and her husband attended the hearing before the First-tier Tribunal.  The claimant’s husband gave evidence, which the First-tier Tribunal accepted, to the effect that, when wanting to claim his pension, he had asked for a form to claim for his wife and had ticked the relevant box on the tear-off pages on leaflet BR33 07/06 to say that he wanted to claim for her.  He had not received a separate form in respect of his wife.  He said that the tear-off pages must have been received because his own pension had been awarded.  The First-tier Tribunal decided that “a claim for the category B Pension had been made by way of completing the appropriate box on the tear off pages 17 and 18 from form BR33 07/06” and it allowed her appeal on that basis.

5. The Secretary of State now appeals against the First-tier Tribunal’s decision with my permission.  His original submission was simply that “a tick on a form, itself apparently effected by the claimant’s husband, cannot lawfully be taken to be a benefit claim in writing made by the claimant.”  I do not accept the full width of that assertion.  What a tick on a form signifies depends on what is written beside the relevant box.  Indeed, the Secretary of State has helpfully drawn my attention to CP/3037/2004 and he now concedes that a tick in the relevant box on a claim form for a benefit can constitute a claim for an increase of that benefit in respect of a dependant.  Moreover, there are some circumstances where something written and submitted by one person can be treated as having been written and submitted by another person.  It all depends on whether the first person is acting on behalf of the second person and whether the second person adopts what has been written.

6. However, I accept that, in the circumstances of the present case, the First-tier Tribunal erred.  The claimant and her husband understandably did not appreciate the distinction there is between a husband claiming an increase of his retirement pension in respect of his wife and her claiming her own retirement pension on the basis of his contribution record.  The distinction is a fine one because the amount of money paid is the same given the benefit rates and the way the provisions of the Social Security (Overlapping Benefits) Regulations 1979 (SI 1979/597) work.  The main, if not the only, practical difference is that an increase in a husband’s retirement pension is paid to him, whereas a Category B retirement pension is paid to his wife.  Nonetheless, despite the fineness of the distinction, I find it impossible to construe what the claimant’s husband did in this case as being to make a claim on behalf of his wife for a Category B retirement pension.  On his own evidence, it seems to me that what he was trying to do was claim an increase of his own retirement pension in respect of her.  In the absence of a claim for a Category B retirement pension before 15 March 2010, the claimant was not entitled to such a pension before 16 March 2009.

7. With this in mind when I granted permission, I asked the Secretary of State to consider whether, in view of the First-tier Tribunal’s clear findings of fact, the claimant’s husband should be treated as having made a claim in 2007 for an increase of his Category A retirement pension in respect of the claimant.  The Secretary of State has readily accepted that the claimant’s husband should be treated as having made such a claim.  The claimant and her husband accept that as a satisfactory outcome of this case, since they have a joint bank account and the amount of money that will be paid is the same as it would have been if the claimant were awarded a Category B retirement pension in respect of the relevant period.  Accordingly, while I must allow this appeal, the claimant and her husband between them will not lose anything.  The Secretary of State will make a decision on the claimant’s husband’s claim, which should mirror the claimant’s loss in this appeal. 

8. The Secretary of State has established a point in these proceedings, but even that is of limited practical value.  An amendment to the 1987 Regulations effective from 17 March 2008 provides that a specific claim for a Category B retirement pension is no longer required in a case where a woman is already entitled to a Category A retirement pension when her husband also becomes entitled to one (see regulation 3(cb) of the 1987 Regulations, as amended by the Social Security (Claims and Payments) Amendment Regulations 2008 (SI 2008/441)).  Had that amendment come into force a year earlier, the present case would never have arisen.

Mark Rowland

13 February 2012