GM v Secretary of State for Work and Pensions (RP)

The exception removing the need to claim a Category B retirement pension applied only where the spouse became entitled to a Category A pension on or after 17 March 2008. The wording, legislative context and operational purpose of regulation 3(1)(cb) of the Social Security (Claims and Payments) Regulations 1987 supported a prospective, not retrospective, construction.

Article 14 did not require a different result. The pre-2008 and post-2008 cohorts were subject to different legal regimes and were not in relevantly analogous situations. In any event, the bright-line distinction was justified by administrative feasibility, resource constraints and the legitimate aims of the statutory claims system.

The appellant received a reduced Category A retirement pension from January 1998. Her husband became entitled to his Category A pension in August 2000. She claimed a Category B pension only in December 2017 and received the maximum permitted 12-month backdating.

The First-tier Tribunal dismissed her appeal against the Secretary of State’s refusal to backdate entitlement to 17 March 2008 or, alternatively, to August 2000. The appellant appealed on statutory construction and human-rights grounds. The central issues were whether regulation 3(1)(cb) applied where the spouse’s entitlement pre-dated the amendment, and whether the requirement for a separate claim unlawfully discriminated against pre-2008 married women.

1. Statutory construction. The Upper Tribunal dismissed the appeal. Regulation 3(1)(cb)(i) of the Social Security (Claims and Payments) Regulations 1987 removed the claim requirement only where the spouse became entitled to a Category A pension after the amendment came into force on 17 March 2008. The ordinary meaning of “becomes entitled”, the contrast with provisions using the past tense, and the need to read both limbs of regulation 3(1)(cb) consistently all pointed to that conclusion.
2. The immediate context was the incremental list of narrowly defined exceptions to the general rule in section 1 of the Social Security Administration Act 1992 that entitlement depended on a claim. The evidence showed that the 2008 amendment was introduced when improved information-technology systems could automatically identify relevant post-2008 cases. There was no system functionality to identify all earlier potential claimants without a resource-intensive retrospective exercise. The presumption against retrospectivity provided additional support, although it was unnecessary to decide the issue.
3. Article 14. The Upper Tribunal permitted the evolved human-rights arguments to be considered, given its inquisitorial jurisdiction and the absence of unfairness. The Thlimmenos argument failed because the appellant had not established the necessary disadvantage and relevantly different treatment. In addition, the challenge was directed principally at section 1 of the Social Security Administration Act 1992, and the Upper Tribunal could not read that provision down by judicial legislation or grant a declaration of incompatibility.
4. The “other status” argument also failed. The two cohorts were subject to different legal regimes introduced at different dates and were not in analogous situations. Alternatively, the distinction was justified. The State was entitled to use a bright-line date in the administration of social-security benefits, having regard to administrative convenience, finite resources, operational feasibility and the need to identify entitlement by reference to a claim or trigger event.
5. The First-tier Tribunal had made no error of law. Its decision of 27 May 2020 therefore stood.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal’s decision involved no error of law.
• First-tier Tribunal (Social Entitlement Chamber): on 27 May 2020 dismissed the appeal against the Secretary of State’s decision dated 20 December 2017.