Campbell v Secretary of State for Work & Pensions

A decision under article 13(2) of a reciprocal social-security agreement not to pay incapacity benefit is a decision made on an award for the purposes of section 12(1)(a) of the Social Security Act 1998. It is not a decision under section 113(1) of the Social Security Contributions and Benefits Act 1992, nor a decision within Schedule 3 paragraph 3(a) of the 1998 Act.

Accordingly, the prescribed exclusion in Schedule 2 paragraph 22 of the Decisions and Appeals Regulations removes any right of appeal. The article 13(2) test is subjective, subject to rationality review.

The appellant had been awarded incapacity benefit after becoming incapable of work in Great Britain. He left for Jamaica and continued receiving benefit for the permitted temporary period. The Secretary of State later decided that he did not satisfy article 13(2) of the reciprocal Convention and stopped payment.

The Bradford Appeal Tribunal allowed his appeal. The Tribunal of Social Security Commissioners held that the appeal tribunal had acted without jurisdiction and set its decision aside. The central issue was whether the Secretary of State’s decision was made on an award under section 12 of the Social Security Act 1998, and whether it was excluded from appeal.

1. Disposition. The appeal was dismissed unanimously. The Commissioners were entitled to conclude that the appeal tribunal had no jurisdiction.
2. Character of the decision. Article 13(2) formed part of a bilateral agreement given domestic effect by section 179 of the Social Security Administration Act 1992. Section 113(1) of the Social Security Contributions and Benefits Act 1992 imposed the ordinary disqualification for absence from Great Britain, but was modified to the extent required by the Convention. The article 13(2) decision itself remained a decision under the agreement, not a decision under section 113(1).
3. Appeal rights. The decision determined whether the claimant was to be treated as outside the section 113(1) disqualification. It was therefore a decision on an award for section 12(1)(a) of the 1998 Act. It was not within Schedule 3 paragraph 3(a), which concerns whether an entitlement is not payable by reason of a statutory disqualification. Once classified as a decision on an award, Schedule 2 paragraph 22 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, read with Schedule 2 paragraph 9 of the 1998 Act, excluded any appeal.
4. Interpretation and international commitments. The statutory scheme was construed consistently with the United Kingdom’s international commitments. The Jamaican Government had a direct interest in decisions under the Convention, making it unlikely that Parliament intended to create an appeal allowing a tribunal to substitute its own view.
5. Delegated legislation and human rights. Chadwick LJ reached the result without deciding whether delegated legislation could assist in interpreting the 1998 Act. Arden LJ considered that contemporaneously made regulations forming an integral part of the statutory scheme could properly be used for that purpose, while Judge LJ deferred a concluded view. Article 13(2) imposed a subjective test, subject to rationality. On the accepted basis that article 6 did not govern substantive rights, the absence of an appeal did not engage article 6. The respondent’s notice issues therefore did not arise.

1. Court of Appeal (Civil Division) — On 28 July 2005, the appeal from the Commissioners was dismissed: [2005] EWCA Civ 989.
2. Tribunal of Social Security Commissioners — On 5 April 2004, the Commissioners held that the Bradford Appeal Tribunal had acted without jurisdiction and set aside its decision.
3. Bradford Appeal Tribunal — Following a hearing on 23 April 2002, the tribunal allowed the claimant’s appeal in a decision issued on 15 May 2002.