AG-v-Department for Social Development (WB) [2010] NICom 69

Decision No:  C1/08-09(WB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

WIDOWS BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 6 June 2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 6 June 2007 is in error of law. The error of law identified will be explained in more detail below.

2.	Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

3.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

4.	My decision is that the appellant is not entitled to widow’s benefit for the period from 10 October 1990 to 15 March 2000.

5.	The appellant has no entitlement to a widow’s payment.

	Background

6.	On 7 June 2006 a decision-maker of the Department decided that the appellant was not entitled to a widow’s payment and a widow’s benefit for the period from 10 October 1990 to 15 June 2000. An appeal against the decision dated 7 June 2006 was received in the Department on 22 June 2006.

7.	An appeal tribunal hearing took place on 6 November 2006. The appeal tribunal allowed the appeal, and did not confirm the decision dated 7 June 2006. On 20 November 2007 an application for leave to appeal against the appeal tribunal’s decision was received in The Appeals Service (TAS). On 18 April 2007 the legally qualified panel member (LQPM) determined that the decision of the appeal tribunal was in error of law and directed that the appeal be determined by a differently constituted appeal tribunal.

8.	A further appeal tribunal hearing took place on 6 June 2007. The appellant was present and was represented. A presenting officer (PO) was also present. The appeal tribunal disallowed the appeal and upheld the decision of 7 June 2006. On 18 May 2008 an application for leave to appeal to the Social Security Commissioner was received in TAS. On 5 June 2008, the application for leave to appeal was refused by the LQPM.

	Proceedings before the Social Security Commissioner

9.	On 11 July 2008, a further application for leave to appeal to the Social Security Commissioner was received in the Office of the Social Security Commissioners and Child Support Commissioners.

10.	On 11 November 2008 observations were sought from Decision Making Services (DMS) and these were received on 8 December 2008. DMS opposed the application. Observations were shared with the appellant on 13 January 2009. A submission in reply to the Department’s observations was received on 10 February 2009. This was shared with the Department on 13 February 2009. On 20 March 2009 I granted leave to appeal, citing, as a reason that an arguable issue arose as to whether the appeal tribunal correctly applied the legislative provisions relating to the issues arising in the appeal. I also directed an oral hearing of the appeal.

11.	On 29 April 2009 a further submission was received from the appellant’s representative in response to the granting of leave to appeal. This further submission was shared with DMS on 29 April 2009.

12.	The oral hearing of the appeal took place on 30 July 2009. The appellant was present and was represented by Mr Watt of Counsel. The Department was represented by Ms Ursula Rush of DMS. Gratitude is extended to both representatives for their detailed and constructive observations, comments and suggestions.

13.	There then followed a considerable delay in the promulgation of the decision in this appeal and the drafting of the reasons for that decision. This delay was occasioned by the requirement for detailed research into the background to certain of the legislative provisions relevant to the issues arising in this appeal. Further, there was a requirement to investigate an apparent anomaly in the legislative provisions applying in Great Britain and those applying in Northern Ireland. There was a requirement to issue a post-hearing direction to DMS which resulted in a further submission being received on 28 May 2010. This further submission was shared with the appellant and her representative on 3 June 2010 and a submission in reply was received from the appellant’s representative on 29 June 2010. My gratitude is extended to the appellant, her representative and the representative of the Department for the patience shown while these proceedings were concluded.

	Errors of law

14.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

15.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.” 

	Was the decision of the appeal tribunal in the instant case in error of law?

	The agreed factual background

16.	The appellant submitted a claim for retirement pension on 2 March 2000. She subsequently became entitled to retirement pension when she attained the state pension age of 60 on 16 June 2000.

17.	On 23 June 2005, the appellant contacted Pensions Branch to advise that she had recently been informed that her husband had died in England on 10 October 1990.  The appellant had been separated from her husband since 1970 but not divorced.  She provided a copy of her marriage certificate along with a copy of her late husband’s death certificate and stated that she was still legally married at the time of her husband’s death. Consequently, on 15 March 2006 the decision to award the appellant a Category A retirement pension was revised from 16 June 2000 to a Category AB retirement pension, taking into account her late husband’s contributions as well as her own. 

18.	On 6 April 2006 the appellant submitted a claim for widow’s payment and widow’s benefit. A decision was given on 7 June 2006 to disallow the appellant a widow’s payment and a widow’s benefit for the period 10 October 1990 to 15 June 2000 as her claim was received outside the prescribed time limit for claiming.  

	Can the appellant’s claim be backdated to 10 October 1990?

19.	Before 2001 the legislation relating to the backdating of an award of widow’s payment and widow’s benefit was found in the Social Security Administration (Northern Ireland) Act 1992 and the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987. 

20.	Widow’s benefit and widow’s payment were replaced by bereavement benefit and payment from 2001 through the implementation, from 6 April 2001, of Articles 51 to 53 of the Welfare Reform and Pensions (Northern Ireland) Order 1999. Article 51 had the effect of substituting a new section 36 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992. The new section 36 provided that a person whose spouse died on or after the ‘appointed day’ should be entitled to a bereavement benefit subject to other conditions. Section 36(3) provided that the ‘appointed day’ should be the day appointed for the coming into operation of Articles 51 to 53 of the Welfare Reform and Pensions (Northern Ireland) Order 1999. Article 52 made similar provision for bereavement allowance through the introduction of a new section 39B into the Social Security Contributions and Benefits (Northern Ireland) Act 1992

21.	The Welfare Reform and Pensions (1999 Order) (Commencement No. 3) Order (Northern Ireland) 2000 provided that the day appointed for the coming into force of  Articles 51 to 53 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 should be 9 April 2001.

22.	Section 1 of the Social Security Administration (Northern Ireland) Act 1992, as originally enacted and as applies in the instant case, provides that:

‘l.—(l) 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.

(2) Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it—

(a) if the benefit is a widow's payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made; and

(b) if the benefit is any other benefit except disablement benefit or reduced earnings allowance, the person shall not be entitled to it in respect of any period more than 12 months before that date, except as provided by section 3 below.’

23.	Section 1 operates, therefore, in the instant case, and at first consideration, to defeat the appellant’s claim. Section 1(2) provides that, a claim to a widow’s payment or widow’s benefit shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made. In the instant case, the claim was made on 6 April 2006, and the appellant’s husband’s death had occurred on 10 April 1990. Section 1 is subject, however, to section 3.

24.	Section 3 of the Social Security Administration (Northern Ireland) Act 1992, as it applied in the instant case, and as originally enacted, provides –

‘3.—(l) This section applies where a woman's husband has died, or may be presumed to have died, and the circumstances are such that—
 
(a) more than 12 months have elapsed since the date of death (whether he died, or is presumed to have died, before or after the coming into force of this section); 

(b) either—

(i) the husband's body has not been discovered or identified or, if it has been discovered and identified, the woman does not know that fact; or

(ii) less than 12 months have elapsed since she first knew of the discovery and identification of the body; and

(c) no claim for any of the widowhood benefits, that is to say—

(i) widow's benefit,

(ii) an invalidity pension under Article 17 of the Pensions Order, or

(iii) a Category A retirement pension by virtue of paragraph (5) of that Article,

was made or treated as made in respect of the death by the woman before 14th August 1990 (the date of the coming into operation of Article 8 of the Social Security (Northern Ireland)  Order 1990, which inserted in the 1975 Act section 154C, the provision of that Act corresponding to this section)
.
(2) Where this section applies, notwithstanding that any time prescribed for making a claim for a widowhood benefit in respect of the death has elapsed, then—

(a) in any case falling within paragraph (b)(i) of subsection (1) above where it has been determined—

(i) under subsection (l)(b) of section 18 below on a claim made by the woman; or

(ii) under subsection (4) of that section on the submission of a question by her, 

that the husband has died or is presumed to have died; or

(b) in any case falling within paragraph (b)(ii) of subsection (1) above where the identification was made not more than 12 months before the woman first knew of the discovery and identification of the body,

such a claim may be made or treated as made at any time before the expiration of the period of 12 months beginning with the date on which that determination was made or, as the case may be, the date on which she first knew of the discovery and identification.

(3) If, in a case where a claim for a widowhood benefit is made or treated as made by virtue of this section, the claimant would, apart from subsection (2) of section 1 above, be entitled to— 

(a) a widow's payment in respect of the husband's death more than 12 months before the date on which the claim is made or treated as made; or 

(b) any other widowhood benefit in respect of his death for a period
more than 12 months before that date, then, notwithstanding anything in that section, she shall be entitled to that payment or, as the case may be, to that other benefit (together with any increase under section 80(5) of the Contributions and Benefits Act).’

25.	How does section 3 apply in the instant case? To begin with, it is clear that, for the purposes of section 3(1)(a), the appellant’s husband had died, and, at the date of claim, more than 12 months had elapsed since the date of death, but those facts alone are not of great assistance. 

26.	What has to be added to those facts is either that:

•	The appellant’s husband’s body had not been discovered or identified or, if it had been discovered or identified, the appellant did not know that fact (Section 3(1)(b)(i)) or

•	Less than 12 months have elapsed since the appellant first knew of the discovery and identification of the body (Section 3(1)(b)(ii))

27.	There are, of course, additional requirements set out in section 3(1)(c), but none of those are relevant here.

28.	I am of the view, that there is a specific context and purpose behind section 3 of the Social Security Administration (Northern Ireland) Act 1992. That context is confirmed by the wording of the marginal or side-note to the section, which reads ‘Late claims for widowhood benefit where death is difficult to establish’. It is legally permissible to look at the general purpose of a section of an Act and the mischief at which it is aimed by a consideration of the marginal note – see the comments of Upjohn LJ in Stephens v Cuckfield RDC [1960] 2 QB 373 at 383.

29.	The section is not concerned, in my view, with the situation where it has not been difficult to establish a death. My conclusion with respect to the purpose of the section is reinforced when one looks at the connection between section 3(1)(b)(i) and section 3(2)(a). Section 3(2)(a) refers back to section 3(1)(b)(i) by stating that in any case falling within that paragraph:

‘… where it has been determined

(i) under subsection (l)(b) of section 18 below on a claim made by the woman; or

(ii) under subsection (4) of that section on the submission of a question by her, 

that the husband has died or is presumed to have died; …’

30.	Section 18(1)(b) permits the submission of any question arising in connection with a claim for, or award of, a benefit an adjudication officer (now a decision-maker). Section 18(4) provides that:

	‘(4) If-

(a) 	a person submits a question relating to the age, marriage or death of any person; and

(b)	it appears to the adjudication officer that the question may arise if the person who has submitted it to him submits a claim to a benefit to which this section applies,

The adjudication officer may determine the question.’

31.	It seems to me, therefore, that the circumstances with which section 3(1)(b)(i) and section 3(2)(a) are concerned are where a claimant, who does not know whether her husband is alive or dead, but suspects that he may be dead, submits a claim to a widow’s benefit or payment. The adjudication officer in connection with that claim may make a section 18(2)(a) determination the question as to whether the husband has died or is presumed to have died. Alternatively, the claimant, together with the claim to the widow’s benefit, submits a section 18(4) question asking the adjudication officer to determine the question as to whether the husband has died or is presumed to have died.

32.	Support for this interpretation of section 3(1)(b)(ii) and section 3(2)(a) is to be found in the comments of the Great Britain Commissioner in CG/7235/95. At paragraph 14 he stated:

‘14. Much stress is laid by the claimant and by her Solicitor on the provisions of paragraph (i) of section 3(1) but that does not apply here, for the reasons explained above. The type of case envisaged there is that it is the kind that is dealt with in such reported decisions as R(G) 4/57; R(G) 1/62; and R(G) 1/80, where a woman does not know whether her husband is alive or dead. She then applies to an adjudication officer either under subsection (1)(b) of section 20 of the 1992 Act or under subsection (4) of that section (i.e. either on a claim or submission of a question) for a decision on the evidence by the adjudication officer that her husband has died or can be presumed to have died and if so, on what date. In such a case if the adjudication officer decides that the husband is presumed to have died on a given date, then there will be back-dating to that date, without the imperative requirement that there shall be no more than a 12 months gap between identification and the widow's knowledge.’

33.	There is further support for the interpretation which I have given to section 3(1)(b)(i) and section 3(2)(a) when the legislative history of section 3 as a whole is considered. 

34.	In Great Britain, the statutory equivalent to section 3 of the Social Security Administration (Northern Ireland) Act 1992, to be found in section 3 of the Social Security Administration Act 1992. The forerunner to that section 3 was section 165C of the Social Security Act 1975. Section 165C was inserted in to the Social Security Act 1975 by section 6(2) of the Social Security Act 1990. The Social Security Bill was considered by both the House of Commons and House of Lords during its passage through Parliament (Hansard, H.C. Vol.165, col 625; Vol 170, cols 495, 547, 1077; Vol 176, cols 72, 79; H.L. Vol 518, col 234; Vol 520, cols 10, 97, 113, 1272, 1691, 1893; Vol 521, col 279.) The Bill was also considered in Standing Committee G from 1 February 10 1 March 1980 (HOC Standing Committees Official Report 1989-1990, Vol V, col 190-193).

35.	On 3 April 1990, the Permanent Under Secretary of State for the Department of Social Security made the following statement about the general purpose of what was to become section 6(2) of the Social Security Act 1990:

‘To deal briefly with the background to the provision, we have been conscious of the difficulties faced by widows who, because of circumstances beyond their control, make a late claim for widow’s benefit and then find themselves caught by the existing 12 months limitation on payment of arrears. 

The type of case we have in mind – fortunately, there is a small number of such cases – is where the widow’s claim is delayed more than 12 months because her husband has disappeared and there is a lengthy delay in the discovery of his body, or if the body is not found, when she has to rely instead on the presumption of death provisions. Such cases are fortunately rare, but they do exist; we felt it right and proper to make special provision for them, and we did so in the Bill.’ (Hansard, H.C. Vol.170, col 1118)

36.	A similar statement was made during the passage of the Bill through the House of Lords, by Baroness Blatch:

’It may be helpful if I give a brief indication of the reasons behind this rather unusual but wholly beneficial provision. We have been concerned about the benefit position of a small number of widows who claim benefit late through no fault of their own. The type of case that we have in mind is where the widow’s claim is delayed for more than 12 months because her husband has disappeared and there is a lengthy delay – possibly some years – in the discovering of his body, or indeed if his body is not found, where she has to rely instead on the presumption of death provisions. Clause 12 will enable arrears of benefit to be paid all the way back to the date of widowhood – subject of course to the offset of any other benefit received during the period – instead of being limited to a maximum period of 12 months as at present.’ (Hansard, H.L. Vol.520, col 126)

37.	This context to section 3(1)(b)(i) and section 3(2)(a) would mean that the time limit may be extended where it is more than 12 months since the spouse has died or is presumed to have died and:

•	The spouse’s body has not been found or identified; or

•	The claimant was not aware of the finding or identification of the body at a time when the adjudication officer was asked to make a determination in connection with the death, and

•	The adjudication officer has determined that the spouse has died or that it can be presumed that he is dead, and

•	The claim to widow’s payment or widow’s benefit is made within 12 months of the adjudication officer’s determination.  

38.	In written and oral submissions on the appeal, the appellant’s representative has submitted that if the reasoning of the Commissioner at paragraph 14 of CG/7235/1995 is correct, then the statute favours wives who are in ignorance over those who know the truth. Further, the representative submitted that it would be difficult to conceive of a situation where a claimant for widow’s benefit will not know of the death of her husband and if the claimant must be in ignorance of the identification of her husband’s remains when the claim is made then no person could ever bring themselves within section 3(1)(b)(i). It seems to me, however, that the type of claimant who can correctly take advantage of section 3 who does not know whether her husband is alive or dead, but suspects that he may be dead, submits a claim to a widow’s benefit or payment. Examples might include a claimant who suspects that her husband has died in a natural disaster such as the fairly recent tsunami. 

39.	If my contextualisation of section 3(1)(b)(i) and section 3(2)(a) is correct, then the claim to back-dating of the widow’s payment and the widow’s benefit, on the basis of the application of those provisions, to the date of death must fail.

40.	There is, however, another alternative basis on which the claim to back-dating of the widow’s payment and the widow’s benefit to the date of death, on the basis of the application of section 3(1)(b)(i) and section 3(2)(a) must fail. At the date of claim, the appellant’s husband’s body had been discovered or identified, so one question to be considered is whether, for the purposes of section 3(1) the appellant did or did not  know of that fact, and, more importantly, the date on which it is to be ascertained that the appellant did know of this fact.
41.	That question was at the heart of the decision of the Social Security Commissioner in Great Britain in CG/7235/1995. In that case the facts were very similar to those arising in the instant case. The appellant was a woman, born on 15 November 1932, who attained pensionable age of 60 years on 15 November 1992. She made a claim to retirement pension on 21 July 1992. On that form she indicated that she was a married woman. She married on 18 December 1954 but her husband's whereabouts were by 1992 unknown to her. She and her husband had separated in 1955 and she had not seen him since. On 8 March 1994, an officer of the Department of Social Security (as it then was) visited the claimant and informed her that the Department had discovered that her husband had died on 24 May 1978. The claimant there and then, while the visiting officer was present, made a claim for widow's benefit. She made it clear that she considered she was entitled to widow's payment or benefit back-dated to the date of her husband's death on 24 May 1978.
42.	The Commissioner confirmed that the back-dating of the claim to the date of the husband’s death was correctly rejected by the general rule in section 1 of the Social Security Administration Act 1992 (which is in identical terms to section 1 of the Social Security Administration (Northern Ireland) Act 1992). The Commissioner went on to consider whether section 3 of the Social Security Administration Act 1992 (which, again, is in identical terms to section 3 of the Social Security Administration (Northern Ireland) Act 1992), could permit any further back-dating.

43.	The Commissioner found that section 3 was not easy to understand, on a first reading. What was clear to him, in paragraph 10, however, was that:
‘… in construing it one must take all its provisions as applying as at the date of claim. The whole context of the section, particularly bearing in mind that it is made an exception to the requirement of section 1 of a claim for entitlement, undoubtedly leads to this conclusion. In the present case, the relevant date of claim is in fact the actual claim for widow's benefit made on 8 March 1994. The fact that an earlier claim to retirement pension (dated 21 July 1992) has for back-dating purposes been treated as also a claim for widow's benefit does not in my judgment alter that issue. That is done under a deeming provision in regulation 9 of and Schedule 1 to the Claims and Payments Regulations 1987. But for the purpose of ascertaining the claimant's knowledge etc and the application generally of section 3 of the 1992 Act, the relevant date is the date the claim was actually made i.e. on 8 March 1994. Mr Sriskandarajah submitted that at that date, i.e. 8 March 1994, paragraph (b)(i) of section 3(1) of the 1992 Act, referring to a situation where "the woman does not know that fact" i.e. that her husband's body has been "discovered and identified" did not apply because at the date the claim was actually made on 8 March 1994, the claimant already knew (albeit only a few minutes before) that her husband's body had been "discovered and identified". That phraseology in itself is not very apt to describe the situation here where there had been no problem about discovery or identification. It is simply the case that the claimant did not know of her husband's death. I accept Mr Sriskandarajah's submission and reject contrary submissions by the claimant's Solicitor. When the claimant actually made the claim on 8 March 1994 for widow's benefit, she knew (if only a few minutes before) that her husband had died on 24 May 1978.’
44.	In written and oral submissions during the appeal proceedings before me, the appellant’s representative has challenged the reasoning of the Commissioner in CG/7235/95. The representative has submitted that there is no legal basis to the linking of knowledge to the date of claim. I am persuaded, however, by the conclusion of the Commissioner that there is a clear link between section 3 and section 1. Section 1 provides that there shall be no entitlement to a social security benefit unless there is a claim in respect of that benefit or unless the claimant can be treated as having made a claim for it. Section 3 provides an exception to section 1, and the requirement therein to make a claim for entitlement within specified time limits. I have no difficulty in accepting the finding that the relevant date for the purposes of ascertainment of knowledge is the date of claim. Applying that accepted principle in the instant case, the date of claim was 6 April 2006. At that date, the appellant knew that her husband had died on 10 October 1990. 

45.	I have to consider whether section 3(1)(b)(ii), and, by implication, section 3(2)(b) of the Social Security Administration (Northern Ireland) Act 1992 might apply in the instant case. My conclusion is that it does not. The  context to section 3(1)(b)(ii) and section 3(2)(b) means that the time limit may be extended where it is more than 12 months since the spouse has died or is presumed to have died and:

•	The spouse’s body has been found or identified and the claimant learns of this within 12 months of the discovery or identification; and

•	The claim to the widow’s payment or widow’s benefit is made within 12 months of the claimant finding out about the death.

46.	In these circumstances, there can be back-dating for a maximum of two years. In the instant case, the appellant could not satisfy the first of these conditions as she did not learn of the death of her husband within 12 months of the discovery and identification of his body. 

	Can there be any back-dating at all?

47.	Regulation 19(2) of the Social Security (Claims and Payments) Regulations (Northern Ireland), as it applied on 2 March 2000 provided that:

‘(2) The prescribed time for claiming any benefit specified in paragraph (3) is 3 months beginning with any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.’

48.	The benefit listed at sub-paragraph (g) of paragraph (3) of regulation 19 is widow’s benefit.

49.	Regulation 9(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland), as it applied on 2 March 2000 provided that:

‘9.—(1) Where it appears that a person who has made a claim for benefit specified in column (1) of Part I of Schedule 1 may be entitled to the benefit specified opposite to it in column (2) of that Part, any such claim may be treated by the Department as a claim alternatively, or in addition, to the benefit specified opposite to it in that column.’

50.	Regulation 9(7) of the Social Security (Claims and Payments) Regulations (Northern Ireland), as it applied on 2 March 2000 provided that:

‘(7) In determining whether it should treat a claim alternatively or in addition to another claim (the original claim) under this regulation, the Department shall treat the alternative or additional claim, whenever made, as having been made at the same time as the original claim.’

51.	In the listed benefits in column (1) of Part I of Schedule 1, is ‘Category B or Category C retirement pension’. The benefit specified opposite to ‘Category B or Category C retirement pension’ in column 2 of Part 1 of Schedule 1 is ‘Widow’s Benefit’.

52.	During the original oral hearing of the appeal, it became clear that in Part 1 of Schedule 1 of the Social Security Claims and Payments Regulations 1987, in Great Britain, as applied on 2 March 2000, the equivalent table lists ‘A retirement pension of any category’. Further researches by myself revealed that in the decision-maker’s guide, (which comprises reference volumes for decision-makers on the interpretation of social security legislation) at paragraph 2501 of Chapter 2 of Volume 1, which sets out the position with respect to Part 1 of Schedule 1 of the Social Security Claims and Payments Regulations (Northern Ireland) 1987, indicates that a claim for ‘Retirement Pension (of any category) may be treated as a claim for, amongst others, Widow’s Benefit and Bereavement Benefit’. 

53.	Questions then arose as to whether there was the policy intention in having a different provision for Northern Ireland, and why there was an apparent anomaly between the legislative position and the guidance given in the decision-maker’s guide. My concerns were raised, as section 87(1) and (2) of the Northern Ireland Act 1998 provide that:

‘87 Consultation and co-ordination 

(1) The Secretary of State and the Northern Ireland Minister having responsibility for social security (“the Northern Ireland Minister”) shall from time to time consult one another with a view to securing that, to the extent agreed between them, the legislation to which this section applies provides single systems of social security, child support and pensions for the United Kingdom. 
(2) Without prejudice to section 28, the Secretary of State with the consent of the Treasury, and the Northern Ireland Minister with the consent of the Department of Finance and Personnel, may make— 

(a) arrangements for co-ordinating the operation of the legislation to which this section applies with a view to securing that, to the extent allowed for in the arrangements, it provides single systems of social security, child support and pensions for the United Kingdom; and 

(b) reciprocal arrangements for co-ordinating the operation of so much of the legislation as operates differently in relation to Great Britain and in relation to Northern Ireland.’

54.	The purpose of section 87 is to ensure, where possible, ‘parity’ of provision for social security, child support and pensions between Great Britain and Northern Ireland.

55.	Despite detailed researches by myself, which contributed to the delay in the promulgation of this decision, I can find no reason for a policy intention in having a different provision for Northern Ireland relating to the interchange of claims for retirement pensions and widow’s benefits. In response to a specific direction on the question, DMS has submitted that:

‘I have contacted the Social Security Policy and Legislation Division who have advised that no papers are held pertaining to the policy intention and they are, therefore, unable to account for the different wording in the Northern Ireland legislation.  They have advised that the wording of the relevant entries in Schedule 1 to the Northern Ireland Regulations was carried forward from the 1977 Claims and Payments Regulations (and previous to that from the1975 Claims and Payment Regulations also).

However, after much discussion, they have advised that the difference in wording from Great Britain should not disadvantage the claimant as a claim for “a retirement pension of any category” can be treated in the alternative as a claim for “a retirement pension of any other category” and a claim for “a Category B or Category C retirement pension” can be treated in the alternative as a claim for “widow’s benefit or bereavement benefit”.  In this case although the initial claim was for a Category A retirement pension, the Department did, in March 2006, accept that initial claim as a claim in the alternative for a Category B retirement pension and a composite Category AB pension was awarded.  Therefore, that claim for a Category B retirement pension can now be accepted in the alternative as a claim for widow’s benefit.

Social Security Policy and Legislation Division have also advised that Great Britain has promised a consolidation of the Claims and Payments Regulations within the next two years and this will provide an opportunity to amend the wording of the Schedule and bring it into line with Great Britain.

I have examined DMG paragraph 2501 which had been incorrectly copied from the Great Britain version and can advise that this has now been amended to accurately reflect the wording of Schedule 1.’

56.	The legislative position is far from satisfactory and it is not clear whether the anomalous position has operated to the disadvantage to claimants until now. In any event, and in the instant case, I conclude that, under the provisions of regulation 9 and Part 1 of Schedule 1 to the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, the claim form received on 2 March 2000, can be treated as a claim in the alternative for a retirement pension of any other category, including a claim in the alternative for a Category B retirement pension. The claim for a Category B retirement pension can be treated as a claim in the alternative for widow’s benefit. Entitlement to retirement pension arose from and including 16 June 2000. The entitlement to widow’s benefit can, therefore, under the provisions of regulation 19(2) and (3) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987, be back-dated for a further period of three months. I find, further, that the appellant cannot have any entitlement to a widow’s payment.  

57.	Accordingly, to the extent that the appeal tribunal concluded that there could not be some further albeit limited back-dating of entitlement to widow’s benefit, its decision is in error of law.

	Disposal

58.	The decision of the appeal tribunal dated 6 June 2007 is in error of law. Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

59.	I am able to exercise the power conferred on me by Article 15(8)(a)(i) of the Social Security (Northern Ireland) Order 1998 to give the decision which I consider the appeal tribunal should have given as I can do so without making fresh or further findings of fact.

60.	My decision is that the appellant is not entitled to widow’s benefit for the period from 10 October 1990 to 15 March 2000.

61.	The appellant has not entitlement to a widow’s payment.

(signed):  Kenneth Mullan

Commissioner

3 August 2010