PLH                                                                           Commissioner’s File:  CPC 4173/07
	
	SOCIAL SECURITY ACTS 1992-1998
STATE PENSION CREDIT ACT 2002

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for:  	Pension Credit
Appeal Tribunal: 	Leicester 
Tribunal Case Ref:  	038/07/01839
Tribunal dates:	12 October 2007
Reason s issued:	8 November 2007

     1.     	This appeal by the claimant is dismissed, as in my judgment there was no material error of law in the decision of the Leicester appeal tribunal on 12 October 2007 (Mr K Wilding, chairman, sitting alone) to confirm an earlier decision of the Secretary of State that the claimant was not entitled to state pension credit.  As rightly pointed out in the chairman’s grant of leave to appeal and the submission on behalf of the Secretary of State, the tribunal’s decision is technically defective, in that it omits to deal with a clearly raised argument by the claimant alleging the failure to award her state pension credit to be discriminatory: but for the reasons explained below I am satisfied that this argument could have made no difference to the result so that the tribunal’s omission to deal with it leaves the correctness of its actual decision unaffected.  It is not therefore necessary for the decision to be set aside and I simply confirm it as the correct one in law even when the claimant’s discrimination arguments are fully taken into account.
     2.     	The claimant is a lady now aged 76, who lives with her husband.  He is younger than her and is at present aged 61.  Their income consists of her state retirement pension, some modest occupational pensions which they each have, and incapacity benefit to which he is entitled as he is unable to work.  On 13 April 2007 she applied for state pension credit under the State Pension Credit Act 2002.  
     3.     	Pension credit, as noted by the chairman in his very clear statement of reasons issued to the parties on 8 November 2007 at pages 37 to 38, is a benefit having two separate and distinct elements, the “guarantee credit” under section 2 of the Act which is intended to provide a minimum level of income to those aged 60 or over; and the “savings credit” under section 3 which is designed to provide an additional form of income for pensioners over the age of 65 who have low or modest incomes, such as an occupational pension, in addition to the basic retirement pension.  
     4.     	There is no dispute that the claimant is within the relevant age category to be considered for each element of the credit.  It is equally beyond dispute that because the joint household income available to her and her husband for their normal living expenses (which for this purpose includes his incapacity benefit) is over the prescribed threshold for the guarantee credit element she does not qualify for this: regulation 6, State Pension Credit Regulations 2002 S.I. No. 1792.	
     5.     	The tribunal chairman further found, and again there is no ground on which it can be disputed, that the claimant did not meet the conditions in the regulations to qualify for the “savings credit” element either.  This was because the couple’s savings and other “qualifying income” counting for this purpose (broadly, savings and other income saved up or contributed to for retirement) fell short of the minimum threshold to qualify for the  top-up.  Incapacity benefit does not count as qualifying income: see regulations 7 and 9.
     6.     	The chairman’s decision to that effect, impeccable so far as it goes, is however quite fairly criticised by the claimant and in the Secretary of State’s written submission at pages 51 to 54 for not dealing with her principal (indeed, only real) ground for seeking to challenge the refusal of her claim.  This was that the effect of the regulations was discriminatory, and they ought not to be applied in that way even though what they purport to say is clear.  In her original letter of appeal against the Secretary of State’s decision (page 9) she said: 
“I am being penalised because my husband is 15 years my junior but is unable to work due to ill health and receives incapacity benefit.  But as he is 60 years of age if he were a female he would be receiving a pension instead of incapacity benefit and I would be entitled to some pension credit, so this is not only discriminating against me because he receives incapacity benefit instead of a pension which he cannot have until he is another 5 years older it is unjust as I still have the same costs to live but if he was female he would receive a pension and we would be entitled to pension credit.”
     7.     	In her submissions to me on this appeal she reiterates that the effect of the regulations, and in particular the way the conditions for savings credit operate in her case, amounts to sex discrimination against her husband and herself, in that a female of his age would be able to claim a state pension which unlike his incapacity benefit would be taken into account as income for the savings as well as the guarantee part of the state pension credit.  Although the claimant understandably does not express her argument in terms of legal technicalities, the basic cause of her dissatisfaction is clear, and I agree it deserved an answer in the tribunal chairman’s decision.  
     8.     	The possible sources of a legal complaint of sex discrimination are that what is complained of is contrary to (a) the domestic law in the Sex Discrimination Act 1975, (b) the Convention rights now incorporated into United Kingdom Law by the Human Rights Act 1998, or (c) the overriding effect of some material provision of European Union Law: in this context, Council Directive 79/7/EEC on equal treatment in matters of social security, Article 4 of which prohibits discrimination on grounds of sex.
     9.     	The Sex Discrimination Act 1975 cannot assist the claimant in these proceedings. It deals with discriminatory practices in employment and other fields, but does not extend to enabling a person to challenge the social security legislation approved by Parliament; and nor does a Commissioner have any jurisdiction to entertain a complaint under it.  
     10.     	As to the Human Rights Act I do as pointed out in the submission of Mr Lewis on behalf of the Secretary of State have the jurisdiction, and the obligation, to construe all legislation so far as possible in accordance with Convention rights, and to disapply anything in subordinate legislation that I find inconsistent with such rights.  However as the claimant herself says in her reply she is not sure that the adverse treatment of which she complains, which is basically financial, has anything to do with the Act; and I accept Mr Lewis’s submission that regulation 9 of the State Pension Credit Regulations (by which incapacity benefit payable to persons under 65 is not counted with pension or savings income for the purposes of pension savings credit) does not contravene Article 14 of the Convention.  Even assuming that the regulation can be said (contrary to Mr Lewis’s submission and to present United Kingdom authority) to involve some other substantive Convention right such as that in Article 1 of Protocol 1 relating to the peaceful enjoyment of possessions, the (universal) exclusion of incapacity benefit from qualfiying income does not appear to me to raise any question of differential treatment by reference to status so as to become unlawful discrimination under Article 14.  
     11.     	The real complaint, it seems to me, is not the treatment of the incapacity benefit but the fact that as a man between the ages of 60 and 65 the claimant’s husband has not yet qualified for his own retirement pension; while a woman of identical age would be receiving it, and if she were the partner of a person of the claimant’s age applying for pension credit, the pension would be qualifying income and count towards the savings credit threshold.  This is certainly different treatment according to the sex of at least one of the persons involved but again I am not persuaded that it amounts to discrimination against the claimant of the kind prohibited by Article 14 of the Convention and rendered unlawful by the Human Rights Act.  The differential pension ages maintained by the United Kingdom for men and women during the present gradual phasing-out period are accepted as permissible under the Human Rights Convention and a matter for the national legislature to determine; and the difference of which the claimant complains is no more than the necessary consequence of the particular circumstance that she happens to have married a man so much younger than herself.  There is no illegality in the way he is treated as compared with a woman of similar age; and her own position is identical to that of a man who happens to have a male civil partner the same age as her husband.  
     12.     	Council Directive 79/7/EEC of 19 December 1978 is the main overriding provision of European Union law prohibiting inequality of treatment between the sexes in social security benefits (by Article 4).  It has direct effect in the United Kingdom and has been held to apply to state pension credit, at least so far as the savings credit element is concerned: see the Commissioner’s decision in case CPC 4177/05.  
     13.     	Again, however, it seems to me that the claimant cannot succeed in establishing entitlement to the savings credit she seeks by use of the Directive.  First, the exclusion of incapacity benefit from counting as qualifying income for savings credit purposes is not in my view discriminatory, for the same reason as given by the Commissioner in that case relating to the severe disablement allowance there in issue, where he said at paragraph 17:
“I have reached the conclusion that the appeal is misconceived.  Whether the claimant for savings credit is a man or a woman, what is or is not qualifying income is exactly the same.  Thus, for any claimant, severe disablement allowance would be excluded.  As I indicated above, the income to be included in the calculation of qualifying income was designed to encourage savings.  What was excluded from the definition were social security benefits and other income which did not have the nature of savings or other income derived from savings, … I consider that to examine each of the categories of excluded income to determine whether men or women are likely as a class to obtain, on a statistical basis related to age expectancy, more or less advantage that the other, is not the way to approach the question as to whether the regulations offend against Article 4 of the Directive.  What is at issue is whether a claimant is treated differently from the opposite sex when making a claim for savings credit.”
     14.     	As stated above however, the real kernel of the claimant’s complaint is that because of her husband’s age and sex he does not yet get his own retirement pension and therefore there is no retirement pension income for him to be included in her savings credit calculation to get their total qualifying income over the minimum threshold.  In my judgment it is clear that this gives rise to no arguable breach of the Directive, since those circumstances are squarely within the exclusion in Article 7 for “the determination of pensionable age for the purposes of granting old age and retirement pensions and the possible consequences thereof for other benefits” [emphasis added].  Since the savings credit calculation of which the claimant complains is the (inevitable) consequence of her husband not yet being in receipt of a state retirement pension, and the sole reason for that is that he has not yet reached the United Kingdom pensionable age, there can in my view be no question of her having any overriding claim to savings credit under the direct effect  the Directive: Article 7 prevents it.  
     15.     	In my judgment therefore although it is conceded that the claimant’s discrimination arguments ought have been addressed by the tribunal they do not when analysed cast any doubt on the correctness of its actual decision, and I accordingly dismiss this appeal and confirm the decision for the amplified reasons set out above.

(Signed)
P L Howell
Commissioner
23 July 2008