R(P) 1/02

Mr. P. L. Howell QC	CP/4548/1999
4.4.01
Retirement pension – claimant undergoing imprisonment – whether disqualification correctly applied and compatible with human rights legislation
The claimant was entitled to retirement pension on 10 December 1997, made up of a basic pension, an additional pension from his contributions to the current state pension scheme, and graduated retirement benefit from his earnings-related contributions to the previous scheme. The claimant was serving a sentence of imprisonment at that time, and was released on 8 November 1999. An adjudication officer decided the claimant was disqualified for receiving any pension while undergoing imprisonment, by virtue of the provisions of section 113(1) of the Social Security Contributions and Benefits Act 1992. A tribunal confirmed the disqualification. The claimant appealed to the Commissioner.
Held, dismissing the appeal, that:
1.	the disqualification was correctly applied under the clear and unambiguous terms of section 113(1) of the Act;
2.	the disqualification extended to the claimant’s additional pension under SERPS and the graduated retirement benefit under section 62 of the Act, even though they were based on his earnings-related contributions;
3.	there was no question of the tribunal having committed an “unlawful act”, within the meaning of section 6 of the Human Rights Act 1998, by deciding the case in accordance with the primary legislation;
4.	the disqualification had in any case been held by the Commission not to be incompatible with Convention rights relating to protection of property and prohibition of discrimination as incorporated by the Human Rights Act 1998.

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	This appeal by the claimant must be dismissed, as in my judgment there was no error of law in the decision of the Sutton social security appeal tribunal given on 20 May 1998 that he was disqualified from receiving his retirement pension from and including 15 December 1997 while he was serving a sentence of imprisonment.
2.	I held an oral hearing of this appeal which had been directed at the request of the claimant. He appeared and presented his case in person assisted by his wife and Margaret McDonagh of the solicitor’s office, Department of Social Security, appeared for the Secretary of State.
3.	The claimant who was born on 10 December 1932 applied for his retirement pension in good time before his sixty-fifth birthday. There is no dispute that he met the contribution conditions and was entitled to a category A retirement pension under section 44 Social Security Contributions and Benefits Act 1992 from pensionable age, consisting of a basic pension at the starting weekly rate of £62.45, plus an additional pension from his contributions as a contracted-in member of the state earnings-related pension scheme at the starting weekly rate of £95.84, plus graduated retirement benefit under section 62 (from his previous earnings-related contributions to that scheme) at the starting weekly rate of £6.41. 
4.	These amounts would normally have been payable to him from 15 December 1997, the start of the first pension week after he attained pensionable age, but were prevented from being paid by the fact that he was serving a sentence of imprisonment and by the operation of the disqualification provision in section 113 of the Contributions and Benefits Act which provides so far as material as follows:
“(1) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Parts II to V of this Act, and an increase of such benefit shall not be payable in respect of any person as the beneficiary’s wife or husband, for any period during which the person––
		(a) is absent from Great Britain; or
		(b) is undergoing imprisonment or detention in legal custody.”
5.	At the time of his claim, and more importantly from 15 December 1997 until his release on 8 November 1999, the claimant was in Great Britain but serving a sentence of imprisonment imposed on him by a court. It is common ground that there is no provision of the regulations which lifts the disqualification in his case, and this appeal against the tribunal’s decision confirming that section 113 had to be applied while the claimant was in prison has been brought with my leave to test the effectiveness of the disqualification: particularly as regards the contributory earnings-related part of his pension, and in case there may now be some argument under the Human Rights Act 1998 which would assist him and other claimants in a similar position.
6.	So far as the Social Security legislation itself is concerned there can be no doubt that the disqualification has been correctly applied to the claimant’s pension benefits, which all arise under Part II of the Act, for the period while he was in prison. The wording of section 113(1) is quite clear and unambiguous, that the right to receive all such benefits is in effect forfeited while a claimant is serving a sentence of imprisonment. Neither the tribunal nor I can go behind that clear provision of the primary legislation passed by Parliament, even though I have considerable sympathy with the claimant’s point that the contributory earnings-related part of his pension in particular is something that he has worked and paid for, and there seems little logic or justification in this type of benefit being forfeited to the state by way of selective additional punishment of those who happen to have built it up, when it is not a universal provision for basic subsistence such as might be said to be covered by accommodation in prison or hospital at public expense, and a corresponding forfeiture to the state is not imposed on the equivalent earnings-related provision that might alternatively have been made by way of guaranteed minimum pension under an occupational or private scheme.
7.	I should add that the claimant’s particular concern was not for himself but for the effect of the disqualification on his wife, who has stood by him staunchly and has had a most difficult time trying to keep up the mortgage payments on their home without recourse to state benefits, having to go out to work again to do this despite herself being over pensionable age. The main punitive effect of the forfeiture had thus been on her, and this the claimant submitted was doubly unfair: since she was not the person who had been convicted, and again would not have had these difficulties imposed on her had his earnings-related pension provision happened to be in a contracted-out arrangement rather than the state scheme. 
8.	Again I sympathise but again the legislation is categoric: the earnings-related additional pension under the state scheme is his own entitlement and not hers while he remains alive, and is squarely within the forfeiture under section 113(1). The disqualification affecting his benefits under section 113 would not, as I understand it, have adversely affected any entitlement of hers to a basic category B retirement pension on his contributions under section 49 from 15 December 1997 (when she was herself over pensionable age), or prevented that being brought into account in her favour to the limited extent permitted under section 53 in calculating her own category A retirement pension in respect of her working years. None of that however would enable her to benefit from his earnings-related additional pension entitlement, since under section 50 a woman’s category B retirement pension carries no additional element while her husband remains alive.
9.	On the wider issues, having had the benefit of some most helpful submissions on behalf of the Secretary of State, in writing by Mr McClure on 14 September 2000 and 10 January 2001, and orally by Miss McDonagh at the hearing with the additional cases she cited, I have again to conclude that there is no justification for departing, at this level at least, from the clear and unambiguous requirements of the primary legislation that impose the disqualification. 
10.	In the first place although I am required by section 3 of the Human Rights Act 1998 to interpret primary legislation consistently with Convention rights so far as it is possible to do, and this has been held a general requirement now applying on appeal even though the proceedings below took place before the Act came into force (see J A Pye (Oxford) Limited v Graham, [2001] Ch. 804; [2001] EWCA Civ 117) the requirements of this piece of primary legislation are as I say completely clear and unambiguous and do not admit of any other possible interpretation than that adopted by the tribunal and noted above. 
11.	In the present case therefore it does not seem to me that there could have arisen any question of the tribunal below having committed an “unlawful act” under section 6 ibid. by deciding the case as it was required to by the primary legislation, even if this had involved doing so incompatibly with a Convention right. Accordingly it is not necessary for me to consider the exact extent to which the transitional provisions of section 22(4) (referred to in the Commissioner’s decisions in case CG/2356/2000 and another case cited to me) might have prevented the tribunal’s decision given on 20 May 1998, well before the direct application of Convention rights in United Kingdom law from 2 October 2000, from being set aside on that ground. Moreover it has been held by the European Commission on Human Rights (in the “admissibility” decision cited to me: joined cases Szraber and Clarke, ECHR 23 October 1997) that this exact provision for disqualification of an earnings-related pension entitlement while the claimant is serving a sentence of imprisonment does not involve any incompatibility with the provisions of the Convention: either as regards the peaceful enjoyment of a person’s “possessions” (which such rights were held to be) within Article 1 of the first Protocol, or as regards discrimination contrary to Article 14 of the Convention against prisoners whose earnings-related pension entitlement is within the state scheme instead of a private arrangement. Although for my part I find some of the Commission’s reasoning a little difficult and their description of the applications in that case as “manifestly ill-founded” a harsh one (for reasons which will perhaps be apparent from what is said above), I must it seems to me regard their decision as authoritative for present purposes.
12.	For those reasons, I dismiss this appeal.

Date: 4 April 2001						       (signed) P. L. Howell
Commissioner