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Neutral Citation Number:
Reported Number:	R(P)3/09
File Number:	CP 3638 2006
Appellant:	Secretary of State for Work and Pensions
Respondent:	Yates
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	10/06/2009
Date Added:	08/07/2008
Main Category:	Residence and presence conditions
Main Subcategory:	presence
Secondary Category:	Retirement pensions
Secondary Subcategory:	other
Notes:	Retirement pension – Category B pension frozen at level in force when spouse ceased to live in Great Britain – higher Category B pension payable on death of spouse – whether should include increases in benefit rates up to date of his death The claimant’s late husband went to live in Canada in 1976 and his category A retirement pension and graduated retirement benefit (GRB) were frozen at the November 1975 rate in accordance with the provisions of regulations 4 and 5 of the Social Security (Persons Abroad) Regulations 1975 (the Persons Abroad Regulations). Those provisions create exceptions to the general disqualification when absent from Great Britain in section 113 of the Social Security Contributions and Benefits Act 1992 in relation to, inter alia, retirement pension and GRB but (by regulation 5(3)) retain the disqualification for increases in the rate of benefit. The claimant married her husband in September 2001. She was a Canadian citizen and had never lived in the United Kingdom. She was then awarded a Category B retirement pension as his spouse, based on his contributions, also frozen at the 1975 rate under regulation 5(3)(aa). Her husband died on 27 May 2002 and she was then awarded a higher weekly rate of Category B pension in her own right, together with the equivalent of half his GRB, based on November 1975 rates. The claimant appealed to the appeal tribunal, arguing discrimination under Article 14 of the European Convention on Human Rights. The same point was under consideration in R (Carson) v Secretary of State for Work and Pensions), which was decided by the House of Lords in favour of the Secretary of State in May 2005 ([2005] UKHL 37, [2006] 1 AC 173). The tribunal dismissed her appeal and she appealed to the Commissioner. The Commissioner allowed her appeal, basing his reasoning purely on the construction of regulation 5 of the Persons Abroad Regulations and holding that she was disqualified only in respect of any up-rating order since she first became entitled to a pension in her own right, as the provisions of the Persons Abroad Regulations must be considered week by week, and from 27 May 2002 the claimant ceased to fall within regulation 5(3)(aa) relating to married women, and (b) (relating to widows and widowers) did not apply to past up-rating orders. Therefore, the disqualification from up-rating had to be considered under (c) as from that date. The Secretary of State appealed to the Court of Appeal, arguing that, once the extent of disqualification was decided in relation to each up-rating order, the position was then fixed in relation to that up-rating order, even though the benefit is calculated and paid on a weekly basis. Held, allowing the appeal, that: 1. while the Commissioner’s interpretation had force on a strict reading of the wording of the regulation, there was a strong incentive to read any ambiguity in the regulations so as to accord with the evident policy intention in section 113 to deprive those absent from the country from any entitlement to the benefits covered, but to restore it only to the extent that Regulations provided (paragraph 37); 2. the insertion of sub-paragraph (aa) into regulation 5(3) to deal with a particular problem, without sufficient regard to its relationship to the paragraph as a whole should not be allowed to disrupt the scheme of the paragraph, which is that disqualification from the benefit of up-rating is generally treated as applying for the whole of the period of the order, based on the position at the appointed date and in this context the ordinary “week by week” approach is displaced (paragraph 38); 3. therefore sub-paragraph (aa) provided the means of establishing the claimant’s status under the current and previous up-rating orders and there was no reason to revisit the basis of her disqualification under the Persons Abroad Regulations (paragraph 39 and 40). The Court of Appeal remitted the case to the Upper Tribunal so that the matter could be reviewed in the light of the final decision of the European Court of Human Rights in Carson.
Decision(s) to Download:	R(P)_3-09 bv.doc