Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. CP 1867 2013 

ADMINISTRATIVE APPEALS CHAMBER

 

RT v Secretary of State for Work and Pensions (RP)

 

DECISION

 

Permission to appeal is granted.

 

The appeal is dismissed.

 

For the reasons below, the decision of the First-tier tribunal is confirmed.

 

REASONS FOR DECISION

 

1 The appellant applied for permission to appeal against a decision of the First-tier Tribunal sitting in Bristol on 7 11 2012. The application was listed for oral hearing, and I heard the application at Cardiff Civil Justice Centre on 22 10 2013. The appellant appeared and was represented by Mr Newington-Bridges. The Secretary of State was invited but not directed to attend, and did not. But Mr Spencer made a submission for the Secretary of State dealing with the points raised in the grounds of appeal. He did not support the application.

 

2 I have decided to grant permission to appeal to deal fully with the points made by Mr Newington-Bridges. I do so because I consider that the decision of the First-tier Tribunal, read with the papers put to it, did not adequately explain why the First-tier Tribunal dismissed the appellant’s appeal given the full submissions put to it. As this decision explains, the reasons for the decision taken are somewhat technical but I consider that the appellant should nonetheless receive a full explanation. I conclude that the outcome decision of the First-tier Tribunal was correct in law. I am therefore issuing a single decision dealing with the permission and the full appeal. I had the considered views of both parties before me at the applications hearing. As no new points have arisen and no unfairness to either party arises as a result, I have waived the usual procedures following a grant of permission before concluding the appeal.

 

The decision under appeal

3 The appellant, T, was born on 30 01 1945. He therefore became entitled to claim a British state retirement pension following his birthday in 2010. T spent much of his working life abroad and was not entitled to a British pension based on contributions in the United Kingdom alone. He lived and worked in New Zealand from 1961 to 2002. In New Zealand, entitlement to a retirement pension depends on residence in the country, not contributions. Under a bilateral international agreement between New Zealand and the United Kingdom the British authorities regard entitlement earned under the New Zealand scheme as equivalent to that earned by contributions paid or credited under the British scheme. So T was entitled to have his British pension based on both British contributions and New Zealand residence.

 

4 That is not in dispute. What is in dispute is when T became entitled to a British retirement pension taking into account his New Zealand residence. This depends on the process by which, and the time at which, the British authorities became fully informed about T’s New Zealand entitlements.

 

5 As is often the case in disputes about pension entitlement, neither side can produce a complete record about T’s claim for his pension. The First-tier Tribunal found that T had been sent a standard British pension claim form BR1 in October 2009. This was accompanied by a form CF-N-1282. That is the form asking for details of work and contributions in Australia, Canada and New Zealand. It found that T returned the BR1 but not the CF-N-1282. So the decision maker acting for the Secretary of State deciding the claim could rely only on T’s British contributions. These entitled him to no basic state pension but to a small weekly additional pension based on British contributions made since his return to the United Kingdom in 2002.

 

6 T eventually returned the CF-N-1282 in 2011, it being received by the British Pension Service on 17 11 2011. He did so because his daughter had told him about the UK-New Zealand agreement. On receipt of the evidence of New Zealand employment, checks were made and T was awarded a basic state pension at the full rate in addition to the small pension already in payment. The full award of pension was made from the first payday following receipt of the CF-N-1282.

 

7 T asked for the full pension to be backdated to the first payday after his 65^th birthday. That was refused by the Secretary of State. The First-tier Tribunal confirmed that refusal, while expressing sympathy for T’s position.

 

The First-tier Tribunal decision

8 Having realised that he could have received a full British pension from early 2010, T sought to argue that his claim should be changed or backdated to that date. Alternatively, he should be regarded as having deferred his claim so that he would be entitled to an enhanced full pension when it was paid. He had no knowledge of the relevant rules or, in particular, of the UK-New Zealand agreement. And he stated that he had concluded at first that the small weekly additional pension was the full extent of his entitlement. So he had not queried it at the time. He argued that this was because he was given no guidance or assistance in the importance of completing the CF-N-1282.

 

9 The tribunal (Judge Clare sitting alone) dealt with these issues following an oral hearing attended by T and his counsel. The judge gave reasons for refusing the appeal in the decision statement issued immediately after the hearing. They are inevitably in such circumstances somewhat brief, and in my view deal inadequately with the issues raised for T even when read with the record of proceedings and the full submissions to the tribunal.

 

The issues to be decided

10 The first relevant issue is not mentioned in those reasons at all but the record of proceedings shows that it was discussed at the hearing. This is whether T could still appeal against the original decision awarding the small weekly pension.

 

11 The original decision was made on 8 12 2009. It was revised on 20 01 2010. The small additional pension was put in payment from 1 02 2010. As the judge stated at the First-tier Tribunal hearing (and T appears to have accepted at the time), no appeal to the First-tier Tribunal was possible under the Social Security and Child Support (Decisions and Appeals) Regulations 1999 beyond a time limit of 13 months from the original decision. The first letter in the papers that could, on any reading, be treated as an appeal against that decision was a letter dated 14 03 2012. This was in fact a claim for back payment of the weekly amount later awarded or treatment of the unpaid pension as deferred. In any event, even if read as an appeal against the original decision, that was plainly too late.

 

12 The judge dealt with the issue of deferral briskly. T had claimed a pension in 2009 and it was put in payment in 2010. It had not been deferred. The judge then rightly considered the decision of 25 01 2012 under which the full basic pension was paid with backdating to the date when the details about New Zealand residence were supplied. That decision was a supersession decision. It could not be regarded as an application to revise. It was made as a result of an application to supersede (although that language was not used). It was not a new claim. Under the relevant rules the supersession decision could take effect only from the date when it was made. Although a pension claim can be backdated, a supersession decision cannot unless specific reasons apply. None applied here. So the appeal was refused.

 

Grounds of appeal

13 Mr Newington-Bridges made a determined attempt both before the First-tier Tribunal and in the application to me to hack through this jungle of procedure to get at what T considered his rightful pension. His main grounds of appeal were that the form CF-N-1282 should be treated as a new claim or that in the alternative it was not to be treated as an application for supersession.

 

14 In my view, given the complexity of the relevant legislation, the submissions on those two arguments presented deserve a more detailed answer than that of the First-tier Tribunal. I therefore granted permission to appeal to deal with them adequately.  The first of these issues is the significance of the form CF-N-1282 that was issued with the main pension claim form but not returned until some time later.

 

Form CF-N-1282

15 The form issued to T is in the papers. I have to say that I do not fully understand what problems this form caused T as it was sent to T by the Pension Service with the main claim form at the appropriate time and without any prompting. It states clearly at the top: “we need more information so that we can pay you the right amount of state pension.” It then asks about the exact periods that the recipient spent in Australia, Canada or New Zealand. So as T knew it clearly applied to his circumstances.

 

16 At the end of the form is provision for the recipient to give the British International Pension Service authority to ask New Zealand Work and Income (the New Zealand authority) for confirmation of T’s position, explaining that this is necessary because of the terms of the New Zealand Privacy Act 1993. It is to my mind obvious from this that if a claimant does not give the British authorities the required authority then he or she is on notice that the British authorities cannot take things further. And at both the start and the end of the form it gives advice about phoning to get further information if needed.

 

17 Nor can I see anything on the face of that form this that suggests that it is a separate claim form, given both the wording quoted above and the fact that it was sent to T with the main claim form (which he of course returned). The argument might have had more weight to it if there had been some correspondence with the form from T to the Pension Service asserting a separate claim. There is no indication of any in the papers.

 

18 Mr Newington-Bridges nonetheless sought to argue that it was a separate claim form because T “was obviously a claimant in that he claimed benefit by submitting the form”.  For this he relied on the definitions in section 191 of the Social Security Administration Act 1992. That provides that “claim” is to be construed in accordance with “claimant”, and that a “claimant” for a state pension “means ... a person who has claimed benefit”. Behind this is an assumption that needs specific examination but has to date received none in this appeal. It is that the claim for the basic retirement pension is or may be separate from the claim for additional pension. T received an additional pension in respect of his original claim. He did not receive a basic state pension. That, the argument runs, is because he was not aware of the need to tell the British authorities of his New Zealand work, so he made no claim in respect of that work. 

 

The law

19 The definition of “claim” cannot be extracted, as this argument attempts to extract it, from its proper context in the legislation. That context is dictated by section 1(1) of the Social Security Administration Act 1992 (the Administration Act), setting what I might term the whole tone of the approach to claims to benefits. It provides:

 

“Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied,

(a)   he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or

(b)   he is treated by virtue of such regulations as making a claim for it.”

20 The importance of that rule in connection with possible alternative or additional claims to retirement pensions was emphasised by the Court of Appeal in Secretary of State for Work and Pensions v Nelligan [2003] EWCA Civ 555, R(P)2/03. There is now an important exception to the rule where the Secretary of State has notified a potential claimant that no claim is needed for a Category A or Category B pension (see regulation 3A of the Social Security (Claims and Payments) Regulations 1987). This has the effect of neutralising the specific application of the general rule in factual situations similar to Nelligan in many cases. But there is no indication in this case that the Secretary of State gave T any notification of that sort.

 

21 The application of section 1 to retirement pensions can be understood only by reading two complex sets of provisions together: the entitlement provisions in sections 43 to 55C of the Social Security Contributions and Benefits Act 1992 (the Contributions and Benefits Act), and the relevant provisions in the Social Security (Claims and Payments) Regulations 1987 (the 1987 Regulations). As neither the formal submissions from the Secretary of State to the First-tier Tribunal or the Upper Tribunal nor the decision notice of the First-tier Tribunal fully explained the position to T it is necessary to pick the relevant route through those two tortuous sets of provisions to find out why T’s return of the form could not be regarded as a separate claim from his return of the original form.

 

22 It has been assumed without clarification throughout this appeal by the Secretary of State and by the tribunal that T claimed a Category A pension when he sent in the original claim form. The form is not in the papers and nor is any explanation of what a “Category A” pension is. T returned a standard claim form BR1. I assume on that basis that this was a claim for a “Category A” pension, because that is what the form is for. The right to, and description of, a Category A pension is set out in section 44 of the Contributions and Benefits Act. Subsection (3) provides:

“a Category A retirement pension shall consist of –

(a)   a basic pension payable at a weekly rate; and

(b)   an additional pension payable where there are one or more surpluses in the pensioner’s earnings factors for the relevant years”

In other words, somewhat confusingly, a “Category A” pension is actually a combination of two pensions. The decision made on the return of the original form by T is described inconsistently in the papers before the First-tier Tribunal. It is stated to be a decision that T was awarded an additional pension. But it is plain that it was a decision about a Category A pension. So it must also be a decision not to award the basic pension.

 

23 That decision was not appealed and cannot now be appealed. It is final. But it has three continuing consequences in this case. First, under section 8(2) of the Social Security Act 1998:

 

“where at any time a claim for a relevant benefit is decided by the Secretary of State–

(a)   the claim shall not be regarded as subsisting after that time; and

(b)   accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.

It follows from this that T cannot argue that because he only returned part of the set of claim forms the other part of his potential claim can be regarded as continuing until he did get round to returning the other part of the set. He claimed a Category A pension and that claim ceased to exist after the claim was decided.

 

24 The second consequence is that he cannot argue that the “unclaimed” part of the pension was deferred.  This arises from the terms of the benefits for deferral set out in Schedule 5 to the Contributions and Benefits Act. That Schedule throughout refers to deferral of a Category A or a Category B pension. There is no provision in the legislation for deferral of part of such a pension. T did not defer his claim for a Category A pension even though he did not get part of it.

 

25 The third consequence is that there is no scope for T to argue that he is making a new claim that can be backdated. The only course of action possible is that of adjusting the original decision.

 

An application to supersede?

26 It follows from the above that the only legal consequence that can follow from T’s late return of the CF-N-1282 form is by way of an adjustment to his existing pension entitlement. Under the social security legislation, adjustments to final decisions may be made in two ways only: a revision of the original decision, taking effect from the date of that original decision; and a supersession of the decision taking effect, as that name suggests, at a later date.

 

27 Clearly T considers that the adjustment should be by way of a revision back to the original award of pension. A decision may only be revised under the provisions of section 9 of the Social Security Act 1998 read with regulations 3 to 5 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Put simply (again the actual rules are complex) this requires either action within one month of the original decision or the existence of one of a limited number of specific reasons such as official error. I am satisfied that none of those reasons apply here.

 

28 It follows that the only course of action is a supersession of the original decision by a new decision. This takes place under the provisions of section 10 of the 1998 Act read with regulations 6 to 8 of those Regulations. The critical point here is the date at which a supersession decision can take effect. The main rule is in section 10(5). A supersession decision cannot take effect before the date on which it was made or at the earliest the date on which the application is made. There are exceptions in the regulations but again without going through the further complexities of this legislation in detail to establish a negative, I am satisfied that the Secretary of State and First-tier Tribunal applied the correct rule in allowing the supersession from the date the form CF-N-1282 was received.

 

Conclusion

29 It follows that the outcome decision of the First-tier Tribunal is correct and I must dismiss the appeal.

 

David Williams

Upper Tribunal Judge

17 12 2013

 

[Signed on the original on the date stated]