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	UK Social Security and Child Support Commissioners' Decisions
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[2005] UKSSCSC CG_568_2003 (09 May 2005)

CG/568/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the appeal by the Secretary of State is allowed. I set aside the decision of the tribunal made on 28 November 2002 and substitute for that decision my own decision that the claimant was entitled to retirement pension at the rate of £29.88 per week from and including 11 March 2002.
2. This is a Secretary of State's appeal against a decision of the Liverpool appeal tribunal allowing the claimant's appeal against a decision that the claimant was entitled to a retirement pension at the rate of £27.70 per week, (including 15 p. additional pension), which was calculated on the basis of the claimant's own national insurance contributions when she attained retirement age. The claimant's first husband had died, but she had re-married shortly before attaining the age of 60. The tribunal held that the claimant was entitled to the benefit of the contributions of her first husband, and it is against that decision that the Secretary of State now appeals.
3. I held hearings of this appeal by video-link on 22 September 2003, 13 November 2003 and 7 December 2004, although on the last occasion it was unfortunately impossible to establish a connection with the claimant and the appeal has had to be finally determined on the basis of written submissions. The claimant has represented herself and the Secretary of State has been represented at each hearing by Mr Stephen Cooper of the Office of the Solicitor of the Department of Social Security. I am indeed grateful to them both for their patience and forbearance in the face of the technical problems which have plagued what was already a difficult and most unfortunate case. I also record my gratitude for the very fair and helpful way in which Mr Cooper has conducted this appeal on the Secretary of State's behalf.
4. The claimant was born on 6 March 1942. Her former husband paid national insurance contributions and died on 21 September 1996. Following her first husband's death, the claimant was awarded and paid widow's benefit from 24 September 1996.
5. The claimant married her present husband on 15 December 2001, which was just over three months before her 60th birthday, on 6 March 2002. She has consistently maintained that before re-marrying she telephoned the Pensions Service in Newcastle and was told that her re-marriage prior to reaching retirement age would not affect her pension. The claimant's account in her letter of 18 April 2002 of what took place is detailed and credible, and, having observed the claimant in the course of two hearings by means of a video-link, I can find no reason whatever to doubt the accuracy of her account.
6. The claimant's re-marriage took place on 15 December 2001, just under three months before her 60^th birthday, with consequences which in the light of this decision can only be described as catastrophic. By virtue of section 38(2) of the Social Security Contributions and Benefits Act 1992, the claimant ceased to be entitled to a widow's pension on her re-marriage, and on 11 January 2002 a decision was made to that effect. That was clearly something which the claimant expected, since on 27 December she had written a letter returning her order book and stating that she had not cashed any widow's pension orders since her re-marriage took place. However, by section 48B(5) of the 1992 Contributions and Benefits Act, the claimant was entitled to a Category B retirement pension by virtue of her first husband's contributions on attaining the age of 60 only if she was entitled to a widow's pension at that date. The effect of the claimant's re-marriage prior to attaining retirement age was therefore to deprive her entirely of the benefit of her first husband's national insurance contributions.
7. The claimant claimed retirement pension and on 21 February 2002 a decision was made awarding her retirement pension on the basis of her own contributions at the rate of £27.70 per week. The claimant appealed against that decision on 14 March 2002 in terms which made it clear that her appeal was against the amount of retirement pension which she had been awarded, but for some inexplicable reason the submission to the tribunal recorded the decision under appeal as the decision terminating widow's benefit.
8. At the first hearing of the appeal, on 22 August 2002, the chairman directed a supplemental submission on the question of whether section 48 of the 1992 Contributions and Benefits Act 1992 assisted the claimant. That section provides:

"Where a person-

(a) has been married, and

(b) in respect of the tax year in which the marriage terminated or any previous tax year, does not with his own contributions satisfy the contribution conditions for a Category A retirement pension,

then, for the purpose of enabling him to satisfy those conditions (but only in respect of any claim for a Category A retirement pension), the contributions of his former spouse may to the prescribed extent be treated as if they were his own contributions.

(2) Subsection (1) above shall not apply in relation to any person who attained pensionable age before 6^th April 1979 if the termination of his marriage also occurred before that date.

(3) Where a person has been married more than once this section applies only to the last marriage and the references to his marriage and his former spouse shall be construed accordingly."

9. The Secretary of State made a submission in response to that direction, contending that the reference to a marriage being terminated was a reference to termination by divorce and allowed a claimant to increase retirement pension by using a former spouse's contributions only for the length of the marriage and only if the divorcee did not re-marry, and that in any case subsection (3) applied the provision to the claimant's second marriage. However, on 21 October 2002 the tribunal rejected that submission for the following reasons:

"The tribunal was not satisfied that the word "terminated" in s.48(1)(b) is confined to divorce. The normal meaning of the word is sufficiently wide to include all the ways in which a marriage might be terminated including by death.

The tribunal did not agree with the submission of the Secretary of State concerning subsection 48(3). The tribunal understands this to refer to two or marriages which have been terminated.

Under the Secretary of State's interpretation the words "former spouse" in this subsection would refer to (the claimant's second husband). This cannot be correct as that marriage is still in effect.

As the Secretary of State has not directed the tribunal to any other provision to the contrary, it concluded that (the claimant) remains entitled to require (her first husband's) national insurance contributions for each year that she and (her first husband) were married."

10. The Secretary of State applied for leave to appeal, not on the ground that the tribunal erred in their construction of section 48, but on the basis that the appeal concerned a contributions question and was therefore outside the tribunal's jurisdiction. Leave to appeal having been granted by a chairman, the Secretary of State continued to maintain that position in the appeal to the Commissioner. However, in a further submission made in response to a Legal Officer's direction, the Secretary of State resiled from the earlier submission, but submitted that the tribunal was nevertheless in error in their construction of section 48.
11. In CP/6589/1999 it was held that a question under section 48(3) was a contribution question reserved to the Secretary of State under section 17(1)(b) of the Social Security Administration Act 1992. The power to decide certain issues relating to national insurance contributions has been transferred to the Inland Revenue (now HM Customs and Revenue) by the Social Security Contributions (Transfer of Functions, etc.) Act 1999, but the Secretary of State submits that is only questions concerning a person's contribution record which have been transferred, under section 8(1)(m) of the 1999 Act. That leaves open the question of whether the determination of a question arising under section 48(3) of the Contributions and Benefits Act, although not a transferred function, is an appealable decision. However, I am satisfied that such a determination is appealable under section 12 of the Social Security Act 1998 as a decision which is made on a claim, and which is not a decision against which no appeal lies by virtue of Schedule 2 of the Act or Schedule 2 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Although most of Part II of Schedule 3 of the Social Security Act 1998 was repealed (before it was brought into force) by the 1999 Act, paragraphs 16 and 17 of the Schedule were not repealed and were instead brought into force by the Social Security Act (Commencement No. 11 and Savings and Consequential and Transitional Provisions) Order 1999. Consequently, decisions relating to home responsibilities protection and credits remained the responsibility of the Secretary of State and also became appealable with effect from 18 October 1999.
12. At the first hearing of the appeal, the claimant did however raise issues concerning the contributions record on which her entitlement to retirement pension had been calculated. At the second hearing I again adjourned the appeal to enable the Secretary of State to refer to the Board of Inland Revenue the contributions issues for a decision to be made on the claimant's qualifying years for retirement pension purposes. Unfortunately, there was a delay in complying with my direction and when a formal decision was finally made by the Inland Revenue, it simply set out the claimant's contributions record
13. Although the claimant continues to assert that she worked for more years prior to 1965 than those shown on her contributions record, she has indicated that she does not wish to appeal against the Inland Revenue decision. I must therefore decide this appeal on the basis that the contributions record used to calculate the claimant's entitlement is correct. I have jurisdiction to deal with home responsibilities protection, but the claimant does not appear to take issue with the seven home responsibility protection years which she has been awarded. However, as a result of a check which I asked the Secretary of State to carry out, it now appears that on the basis of the claimant's own contributions the correct amount of retirement pension for the 2001/02 year, which was the year in which the award under appeal was made, was £29.73 basic pension and 15p. additional pension, amounting in total to £29.88 per week. That was therefore the correct award of pension for the period 11 March 2002 to 7 April 2002 if the claimant was not entitled to bring into account her first husband's national insurance contributions.
14. Most unfortunately, I have come to the conclusion that that is indeed the case. The tribunal considered that section 48 applied to a marriage which terminated on the death of one of the parties. Although I am not persuaded that that is correct, (since widow's entitlements are dealt with separately) it is not necessary to decide that question in this case. Section 48 enables a person to bring into account the contributions of a former spouse for the purpose of supplementing a defective contribution record in a claim for a Category A pension. Section 48(3) provides that where a person has been married more than once, the section applies only to the last marriage. If a second or subsequent marriage has been terminated, the section enables a claimant to bring into account the contributions of his or her last spouse. However, section 48(3) requires the words "former spouse" in section 48(1)(b) to be taken as referring to the spouse of the claimant's last marriage. If the claimant's last marriage has not been terminated, there is no "former spouse" to which section 48(1)(b) can apply.
15. The tribunal's decision was therefore erroneous in point of law and I must therefore reluctantly allow the Secretary of State's appeal. For the reasons I have given, my decision is as set out in paragraph 1. The amounts of pension to which the claimant was entitled for periods subsequent to the period under appeal are as set out in Mr Kendall's submission received here on 12 January 2005.
16. As I indicated to Mr Cooper at the last hearing, I am very concerned about this case. It appears that the claimant may have been seriously misadvised and suffered very serious financial loss as a result. She has conducted herself throughout this appeal with dignity, courtesy and restraint. I was pleased to note from paragraph 5 of the original submission that the question of compensation is being investigated. I very much hope that the investigation will be dealt with speedily now that I have decided this appeal.

(signed on the original) E A L BANO

Commissioner

29 April 2005