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Neutral Citation Number:
Reported Number:	R(G)1/06
File Number:	CG 2054 2004
Appellant:
Respondent:
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	18/05/2006
Date Added:	16/06/2006
Main Category:	Bereavement and death benefits
Main Subcategory:	bereavement payments
Secondary Category:	Human rights law
Secondary Subcategory:	article 14 (non-discrimination)
Notes:	Bereavement benefit – spouse’s category A pension – human rights The claimants in the three appeals were widowers over pension age who had been refused bereavement payments on the grounds that their late wives had been getting a Category A retirement pension on their own contributions topped up by a Category B pension based on their husbands’ contributions, (as provided for in section 53, later replaced by section 51A, of the Social Security Contributions and Benefits Act 1992). Under section 36(1)(a) of the same Act it is a condition of entitlement to a bereavement payment that the claimant is under pensionable age or that the claimant’s late spouse had not been receiving a Category A retirement pension under section 44. The claimants argued that they should be treated as if their wives had been receiving only the Category B pension and were therefore entitled to the bereavement payment. In the third case a tribunal had accepted that argument and the Secretary of State had appealed. The other claimants appealed to the Commissioner arguing that, as their wives did not have a full contribution record and were not therefore entitled to a full Category A pension, their pensions did not derive from section 44 of the Act but from elsewhere and that this type of Category A pension was not excluded by section 36(1)(a). Alternatively instead of the top-up provision of the former section 53 being applied, the provisions of section 43 of the 1992 Act should have operated to allow the wives entitlement to whichever of the pensions would have been most favourable to them, that being to turn the Category A pensions back into category B pensions. Furthermore the Human Rights Act required both section 36(1)(a) and if necessary section 43(5) to be read so as to remove the anomaly between bereavement payment claimants whose spouses had or had not opted for a Category B rather than a Category A pension, which amounted to discrimination between people in relevantly similar circumstances. Held, allowing the appeal of the Secretary of State and dismissing the appeals of the two claimants, that: 1. the tribunal in the third case had misdirected itself. Under section 51A(2) of the 1992 Act a category A pension is topped up to the level of a Category B pension and remains a Category A pension: there is no substitution of a different category of pension (paragraph 11); 2. although the Act contains no express definition of a Category A pension it is from section 44 that it derives (even when a reduced pension is payable by the supplementary provisions of section 60) and the claimants therefore failed to meet the condition in section 36(1)(a) (paragraph 19); 3. following the decision of the Court of Appeal in Secretary of State for Work and Pensions v Nelligan [2003] EWCA Civ 555 (also reported as R(P) 2/03), section 43 and in particular 43(5) could not be used in these circumstances. Taken in conjunction with the rule of finality of determinations on entitlement in section 60 of the Social Security Administration Act 1992 and section 17 of the Social Security Act 1998 this meant that, once the entitlement of the wives had been determined and not appealed, there was no alternative entitlement under section 43 (paragraphs 23 and 24); 4. the differences of treatment, arising as they did inevitably out of a complicated and interlocking insured benefit scheme, did not constitute unlawful discrimination contrary to Article 14, as they did not raise questions of differential treatment between categories of human beings on the “suspect” grounds, such as sex, race, and so forth, nor were they otherwise offensive to accepted notions of the respect due to the individual(R (Carson) v Secretary of State [2005] UKHL 37, [2006] 1 AC 173 followed) (paragraph 28).
Decision(s) to Download:	R(G) 1-06 bv.doc