Secretary of State for Work And Pensions v Nelligan

Entitlement to a social-security benefit ordinarily depends on a claim being made in the prescribed manner and time, unless regulations provide for a claim to be treated as made. The rule applies before provisions governing the choice between overlapping benefits can operate. Section 43(5) of the Contributions and Benefits Act 1992 does not create entitlement to an unclaimed Category A or Category B pension. It only determines which pension is payable where entitlement to both pensions, including the necessary claim or deemed claim, already exists.

The Secretary of State appealed from a decision of the Social Security Commissioner dated 22 April 2002, which had allowed the respondent’s appeal from the Bexleyheath Appeal Tribunal. The Commissioner held that section 43(5) of the Contributions and Benefits Act 1992 operated as an exception to the claim requirement in section 1(1)(a) of the Social Security Administration Act 1992.

The respondent had received a Category A pension based on her own contributions. After her husband reached pension age, she became potentially entitled to a more favourable Category B pension, but she did not claim it until 1 March 2000. The central issue was whether section 43(5) allowed entitlement to be backdated to 1992.

1. Appeal allowed. The court held that section 1(1) of the Social Security Administration Act 1992 states the general rule: entitlement to benefit requires a claim in the prescribed manner and time, or a deemed claim under regulations. Category A and Category B retirement pensions are benefits within that provision.
2. Section 43 of the Contributions and Benefits Act 1992 does not establish entitlement. It operates only after entitlement to the relevant pensions has been established under the other statutory provisions. Section 43(5) then provides a mechanism for selecting the more favourable pension where no written election has been made.
3. The words making the more favourable pension payable whether claimed or not concern statutory interchange. Regulation 9 and Schedule 1 to the Social Security (Claims and Payments) Regulations 1987 may treat a claim for one benefit as a claim for another. The provision cannot operate until the conditions of entitlement, including a claim or deemed claim, have been met.
4. The legislative history, including the enactment of section 17 of the Social Security Act 1985 after Insurance Officer v McCaffrey [1984] 1 WLR 1353, confirmed that Parliament intended to restore the ordinary requirement for a claim.
5. The approved judgment directed that the respondent was not entitled to a Category B pension for any period before 2 December 1999. The recorded order states 2 December 1997 and makes no order as to costs.

• Court of Appeal (Civil Division) [2003] EWCA Civ 555: Appeal from the Social Security Commissioners allowed. The court rejected the Commissioner’s construction of section 43(5) and directed, in its approved reasoning, that Category B entitlement did not arise before 2 December 1999. The recorded order refers to 2 December 1997.
• Social Security Commissioner: On 22 April 2002, allowed the respondent’s appeal from the Bexleyheath Appeal Tribunal and held that section 43(5) operated as an exception to the general claim requirement.
• Bexleyheath Appeal Tribunal: On 5 January 2001, dismissed the respondent’s appeal on the ground that it lacked jurisdiction to award the pension from 1992 because no claim had been made until March 2000.