BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
UK Social Security and Child Support Commissioners' Decisions |
||
|
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CSPC_677_2007 (04 April 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CSPC_677_2007.html Cite as: [2008] UKSSCSC CSPC_677_2007 |
||
[New search] [Printable RTF version] [Help]
DECISION OF SOCIAL SECURITY COMMISSIONER
"2. Guarantee credit
(1) The condition mentioned in section 1(2)(c)(i) is that the claimant—
(a) has no income; or
(b) has income which does not exceed the appropriate minimum guarantee.
(2) Where the claimant is entitled to a guarantee credit, then—
(a) if he has no income, the guarantee credit shall be the appropriate minimum guarantee; and
(b) if he has income, the guarantee credit shall be the difference between the appropriate minimum guarantee and his income.
(3) The appropriate minimum guarantee shall be the total of—
(a) the standard minimum guarantee; and
(b) such prescribed additional amounts as may be applicable.
(4) The standard minimum guarantee shall be a prescribed amount.
(5) The standard minimum guarantee shall be—
(a) a uniform single amount in the case of every claimant who is a member of a married or unmarried couple; and
(b) a lower uniform single amount in the case of every claimant who is not a member of such a couple.
(6) Regulations may provide that, in prescribed cases, subsection (3) shall have effect with the substitution for the reference in paragraph (a) to the standard minimum guarantee of a reference to a prescribed amount.
…
(9) Except for the amount of the standard minimum guarantee, the powers conferred by this section to prescribe amounts include power to prescribe nil as an amount."
"6.—(1) Except as provided in the following provisions of these Regulations, the
standard minimum guarantee is–
(a) [£181.70] per week in the case of a claimant who has a partner;
(b) [£119.05] per week in the case of a claimant who has no partner.
(2) Paragraph (3) applies in the case of–
(a) prisoners; and
(b) members of religious orders who are fully maintained by their order.
(3) In a case to which this paragraph applies–
(a) section 2(3) has effect with the substitution for the reference to the standard
minimum guarantee in section 2(3)(a) of a reference to a nil* amount; and
(b) except in the case of a person who is a remand prisoner, nil* is the prescribed
additional amount for the purposes of section 2(3)(b)."
"1.The appellant is a member of the religious order of Carmelite Nuns, of the Carmelite Monastery in Dysart, Fife. She is one of 12 nuns whose cases are considered in this statement.
2. The appellant's income, if any, is disclosed in the appendix to this decision, with the document headed – 'Details of Members and Pensions'. The income of individual members of the community is paid into the Monastery Account. The specific needs of each member of the community, in regard to personal items such as apparel and toiletries, are met from the common fund. The members of the community do not have sole access to the funds paid into the Monastery Account from any individual pension or allowance entitlement.
3. The Community at Dysart is a closed order of nuns, who engage in a communal life of prayer and meditation. They enter the order on making vows of poverty, chastity and obedience. The order has an obligation to provide housing, food, and care for the nuns, for their lifetime, or as long as they are members of the order.
4. Reference is made to the factual elements of the submissions from the Secretary of State and from the appellant. In so far as these are not in controversy, they are adopted as repeated herein."
The facts set out in a memorandum prepared by the Department do not seem to be in dispute and are in the following terms:
"Each sister pays all their own income into the monastery's account. although there are only certain people who can withdraw the money from the bank, each sister retains the right to their share of the money. If anything is needed, they may request the cash, or it is paid for out of the account.
The monastery is autonomous. If they were unable to run the monastery or support themselves, it would have to close. If any of the sisters cannot contribute to the funds, her expenses are covered by the others' contributions."
"There had been in prospect an appeal in the case of [Sister B …], to the Social Security Commissioner, but this had been withdrawn by the Secretary of State."
I did not get a satisfactory explanation from Miss Paterson as to why the appeal to the Commissioner in that case had been withdrawn, but as I understood it, it seems as though the Secretary of State did not wish to be drawn into arguments in that case on a subsidiary argument relating to the application of the European Convention on Human Rights. It was Miss Clarke's submission that it was not open to the Secretary of State to take a different view in relation to the case in which he withdrew the appeal to the Commissioner and the cases before me. It was her submission that it was a general principle that "like must be treated as like" and that justice must be seen to be done. It was her submission that the attitude of the Secretary of State offended against the principles of fairness that any fair-minded person would have. Further, Miss Clarke pointed out there was reference made before the tribunal to an undated letter written by Mr James Purnell MP, who is now the Secretary of State but at the material time was Minister of State for Pensions Reform, to Karen Buck MP. He said:
"Pension Credit is an income-related benefit paid out of general taxation and designed to help the poorest pensioners meet their day-to-day living expenses. The rules relating to eligibility do not exclude all members of religious orders. They do, however, exclude those who are fully maintained by their order.
When an application for Pension Credit is received from a member of a religious order, the Pension Service will consider the case on its own merits to determine whether the member is fully maintained. A general distinction is made between orders that are fully committed to providing all that its members need for their maintenance and those that are 'self-maintaining' and as such rely on income from their members' work or pensions, and other sources of income, such as donations, for example, to maintain the order and its members. A person the Pension Service may not consider to be fully maintained by their order is generally someone who has some financial means of their own, such as a Basic State Pension or savings."
It was Miss Clarke's submission that, in these circumstances, the tribunal erred in law by making the decisions which they did in the appeals before them upon the basis that neither the Secretary of State nor the tribunal were entitled to do this, standing the different approach adopted in the other case and the position adopted by Mr Purnell in his letter. Miss Clarke did not, however, produce any authority to support the proposition which she was asserting, other than to make reference to Carson and Reynolds v Secretary of State for Work & Pensions [2005] UKHL 37, paragraph 10. However, in that case, Lord Hoffman in his speech was dealing with the scope of Article 14 of the European Convention of Human Rights. He said in the course of his speech:
"The principle that everyone is entitled to equal treatment by the state that like cases should be treated alike and different cases should be treated differently, will be found, in one form or another, in most human rights instruments and written constitutions."
This speech does not, on any view, set forth that what is asserted by Miss Clarke is a general principle of law.
"The argument on estoppel is hopeless, it being well establish that the doctrine cannot be used in this statutory jurisdiction to create an 'entitlement' outside the terms of the legislation itself …"
"The intention is that, taken together, those clauses will provide powers to ensure that prisoners and members of religious orders who are fully maintained by their order will be excluded from entitlement to Pension Credit. We intend that prisoners and members of religious orders fully maintained by their order will be excluded. That is because the cost of maintaining those groups is met by other organisations."
It was submitted that the intention behind the legislation was that claimants would not receive what was, in effect, double support, both from the state and from their order. In the instant cases, she submitted, the cost of maintaining was not met by the order or by other organisations but by themselves.
"16. I refer to the arguments in the Submission as to the impact of the Convention on Human Rights (ECHR). The argument put is that the sisters suffer a specific religious discrimination in not being entitled to SPC. I am content, for the purposes of considering the ECHR argument to accept on an esto basis, that in point of fact there may be discrimination in not awarding SPC. I refer to my comments above as to the nature and extent of the monastic relationship between the sisters and the Convent, and amongst the sisters themselves. On account of this specific circumstance, in my judgement, the discrimination present is on an appropriate and proportionate basis. Thus the terms of the ECHR do not in my judgement assist to the extent of permitting the appeals by the sisters to succeed. In this regard, I consider that the difference in treatment of the sisters, compared with other members of the female population of their age, is objectively justified, in that it has a legitimate aim, recognising the special and specific attributes of the monastic situation, and bears a reasonable relationship of proportionality, specifically on account of the monastic relationship to which I have referred above."
"53. In conclusion, therefore, if any distinction can still be said to exist in the case law between contributory and non-contributory benefits for the purposes of the applicability of Article 1, Protocol 1, there is no ground to justify the continuing drawing of such a distinction."
That contradicts the view expressed in Campbell.
"The mandatory duty imposed on domestic Courts by Section 2 of the 1998 Act is to take into account any judgement of the Strasbourg Court and any opinion of the Commission. Thus, they are not strictly required to follow Strasbourg rulings, as they are bound by Section 3(1) of the European Communities Act 1972 and as they are bound by rulings of superior Courts in the domestic curial hierarchy."
Thereafter, I was referred to Couronne & Others v. Bontemps & Others [2007] EWCA Civ 1086. In that case, at page 110, Lord Justice Wall said:
"110. After a detailed consideration of the authorities, the judge concluded in relation to Article 1-1, that he was bound by the decision of this court in Campbell. In paragraphs 50 to 52 of his judgment, he said:-
'50. In Campbell, the issue in question arose under Regulation 7 of the Housing Benefit (General) Regulations 1987. The Social Security Commissioner had held that the agreements pursuant to which the appellants occupied their dwellings were "not on a commercial basis" (see Regulation 7), so they were to be treated as if they did not have to pay rent and thus were not entitled to housing benefit. Mr Goudie QC, for the appellants contended that their removal from their previous entitlement to housing benefit amounted to a "deprivation of possession" within Article 1-1.
51. The Court of Appeal rejected that submission – see paragraphs 31 to 39 of the judgement of Jacob LJ and paragraphs 61 of the judgement of Peter Gibson LJ. Thus, in my judgment, unless this case can be distinguished, it is binding upon me as to non-contributory benefit schemes not being with the ambit of Article 1 FP; and that is despite Stec – see Kay v. Lambert LBC [2006] UKHL 10. 2006 2 WLR 570 where the House of Lords held that a court must follow a binding domestic authority even if inconsistent with an ECHR authority. Mr Howell accepts that Stec has abolished the distinction between contributory and non-contributory social security benefits.
52. Mr Cox was bold in his submission. He said that Stec had swept Campbell away. I am not so sure. As Carnwath LJ pointed out in Esfandiari there are problems with Stec. Furthermore, the dicta of Lord Hoffmann in Carson and the dicta of Lord Hope and Lord Scott in Wilson are very strong. I do not think it is therefore possible to say that Stec has swept all before it. In my judgment, I, as a first instance judge, am bound by Campbell. That case may have been dealing with different regulations but the crucial point is that housing benefits and income based JSA are non-contributory and thus do not come within Article 1-1. I further agree with Mr Howell that homelessness assistance does not fall within the ambit of Article 1FP. In any event that issue is of no practical significance since the Claimants were found not to be in priority need.'
111. In relation to ECHR Articles 8 and 14, the judge, after another detailed consideration of the authorities, and an extensive citation from the judgement of Sedley LJ in Langley v. Bradford MBC [2004] EWCA Civ 1343, [2005] 2 WLR 730 concluded in paragraph 60 of his judgment -
'Thus, in the instant case, one must look at the regulations and/or legislation in the instant case and seek out the particular provision i.e. the habitual residence test. That test has nothing to do with promoting respect for private and/or family life. The schemes of JSA and homelessness assistance may generally be intended, at least in part, to respect private or family life. But the particular provision is not and cannot be said to be so intended. Accordingly, Mr Cox cannot bring this case within the ambit of Article 8 of the ECHR.'
112. If it is necessary for me to do so for the purposes of these appeals, I respectfully agree with the judge's analysis."
That decision appears to accept the obiter position adopted in Campbell in relation to Article 1, Protocol 1.
"29. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life". However, it would be too restrictive to limit the notion to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Right to respect for private life must also comprise, to a certain degree, the right to establish and develop relationships with other human beings."
It was said that the deprivation of benefit in the instant cases amounts to a breach of Article 8, as it compromised the right to establish and develop relationships with other human beings. Miss Paterson submitted that the absence of entitlement to Pension Credit does not conflict with the right of respect that the article provides for and does not interfere with it in any way. I fully accept Miss Paterson's submission thereon. In no way does the statutory provision affect the claimant or the other members of the order in relation to their right to establish or develop relationships with other human beings. The regulation concerned simply sets out a basis upon which pension credit shall be calculated in the circumstances applying to the claimants in the appeals before me. It may affect the level of contributions that the claimants are able to make to the monastery. Their relationship to each other as members are already established and the refusal of pension credit does not inhibit the development of their relationship.
(Signed)
D J MAY QC
Commissioner
Date: 4 April 2008
