Head v Social Security Commissioner & Anor

Judicial review of a refusal by a specialist social security appellate body to grant permission to appeal is confined to truly exceptional cases. It is not an alternative route for correcting an arguable error of law or for raising a new point which was not advanced below.

For the purposes of article 1 of Protocol 1, legislation fixing the amount of a state pension may define the claimant’s entitlement rather than deprive the claimant of an existing possession. Contributions do not ordinarily create an entitlement to a pension of a particular amount, especially where the statutory link between contributions and benefits is tenuous. A late Article 14 argument may properly be excluded where it has not been formulated or fairly addressed by the defendant.

The claimant challenged the refusal of a Social Security Commissioner to grant permission to appeal against the disallowance of his appeal concerning the calculation of his retirement pension. He had been contracted out of SERPS for part of his working life and contracted in for another part.

The domestic challenge under section 46 of the Pension Schemes Act 1993 was abandoned. The claimant instead argued that the statutory calculation breached article 1 of Protocol 1 to the European Convention on Human Rights, and sought to raise an alternative article 14 argument. The central issues were whether the Commissioner’s refusal was reviewable and whether the human rights arguments provided an exceptional basis for intervention.

1. Judicial review threshold. The claim was dismissed. A refusal of permission to appeal by a Social Security Commissioner is amenable to judicial review in principle, but intervention is confined to truly exceptional cases. Examples include narrow jurisdictional error, procedural irregularity amounting to denial of a fair hearing, frustration or corruption of the judicial process, or a serious defect in the appellate structure.

2. The court must avoid turning judicial review into an appeal against the Commissioner’s refusal. The claimant’s human rights argument had not been advanced before the Commissioner. Even allowing for the inquisitorial nature of the social security system and the frequent absence of legal representation, it was not a plain, obvious or exceptionally strong point which the Commissioner should have identified and pursued of his own motion.

3. Article 1 of Protocol 1. The statutory calculation did not deprive the claimant of an existing possession. It defined the state pension entitlement arising on retirement. The European authorities, as applied in Carson v Secretary of State for Work and Pensions, supported the distinction between an existing possession and a right to acquire a benefit of a particular amount.

4. The payment of higher-rate National Insurance contributions during contracted-in employment did not alter that conclusion. The statutory link between contributions and retirement benefits was tenuous. The calculation under section 46 had been part of the scheme throughout the relevant period, and contracting out produced a bundle of consequences, including lower contributions, a guaranteed minimum pension and the possibility of a higher occupational pension.

5. Article 14. The court refused to expand the claim at the hearing to include the unformulated discrimination argument. The Department would require a fair opportunity to address the comparator and justification issues. The judge nevertheless indicated that the argument appeared weak because the claimant was not obviously in an analogous position to persons who had always remained contracted in or always contracted out, and any difference in treatment might be justified.

The claim for judicial review was dismissed.

The judgment describes the following procedural history:

• Social Security Appeal Tribunal: the claimant’s pension appeal was disallowed on 16 March 2006 and permission to appeal was refused.
• Social Security Commissioner: permission to appeal was refused on 18 August 2006.
• High Court (Administrative Court): permission to apply for judicial review was initially refused, then granted following an oral renewal hearing. The claim was dismissed by Nicol J.