Cockeram v Social Security Commissioners

At the permission stage, an application may be renewed before the full Court where the proposed grounds disclose matters that can arguably be said in the applicant’s favour and merit further consideration. The court need not determine the appeal’s merits at that stage. Arguable issues included whether subordinate regulations purported to alter a statutory benefit provision without statutory authority, and whether a departmental assurance about benefit continuation after pensionable age had been relied on when the applicant retired.

Mr Cockeram sought permission to appeal from decisions of Mr Howell, the Social Security Commissioner, dated 1 June and 13 July 2000. His claims had been affected by a decision of the European Court that the pension exception applied to the alleged sex discrimination concerning reduced earnings allowance. The Commissioner thereafter dismissed a number of claims.

Before the Court of Appeal, Mr Cockeram argued that the individual facts of his claim had not been properly considered. The central question was whether two matters were sufficiently arguable to justify renewal of the permission application before the full Court.

Disposition

Lord Justice Longmore allowed the application. He did not grant permission to appeal. He directed that the application be renewed before the full Court, with the Social Security Commissioners represented, and that any appeal should be heard if permission were granted.

Arguable statutory issue

The first matter concerned paragraph 6 of the Social Security Industrial Injuries of Diseases (Miscellaneous Amendments) Regulations 1996. That provision substituted a different meaning of regular employment for the meaning in the Social Security (Industrial Injuries) (Regular Employment) Regulations 1990. Subparagraph (3) also provided that a person who had reached pensionable age was treated as having given up regular employment at the start of the first week in which he was not in regular employment after the specified period.

It was arguable that the provision purported to amend paragraph 13 of Schedule 7 to the Social Security Contributions and Benefits Act 1992. The judge expressly made no final determination and considered that counsel should explain whether statutory power existed to amend an Act by regulation.

Departmental assurance

The second matter concerned a letter stating that reduced earnings allowance would continue after age 65 if the conditions of benefit remained satisfied, and that retirement pension would not affect the award. Mr Cockeram said that he had relied on that assurance when retiring in 1987. The court considered that this provided a further arguable basis for renewal.

The transcript was ordered to be provided to Mr Cockeram at public expense so that he might obtain legal assistance. Counsel would be available to assist the full Court on the legal issues.

• Court of Appeal (Civil Division): Lord Justice Longmore allowed the application for renewal of permission and directed that any appeal be heard if permission were granted.
• Social Security Commissioner: Mr Howell declined to deal with the claims initially and subsequently dismissed a number of claims following the European Court’s decision on the pension exception.