[2006] NISSCSC C1_05_06(WB) (22 November 2006)

Decision No:  C1/05-06(WB)
Decision No:  C2/05-06(WB)
Decision No:  C3/05-06(WB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

WIDOWS BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 26 October 2004

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This decision relates to three appeals, leave having been granted by the legally qualified panel member, by the Department against decisions dated 26 October 2004 of an appeal tribunal sitting at Belfast.  With the agreement of Mr Millar of Decision Making Services branch, representing the Department and Mr Hatton of Law Centre (Northern Ireland), representing all three claimants, the appeals were heard together and I give a composite decision.  I am grateful to both representatives for their assistance.

2.	At the hearing before me Mr Hatton conceded that the tribunal had erred in law in relation to all three cases in relation to all three of the grounds of the Department’s appeal.  I consider that he was correct to do so.  I shall indicate the grounds of appeal later in this decision.  Throughout the decision I refer to the appellants by the initial of their respective surnames or as “the appellant” according to the context.

3.	The factual background to each case is set out below:

Mrs K

On 14 February 2000 the appellant advised the Department that her husband had passed away on 14 December 1999 and requested a claim form for widow’s benefit.  A claim to widow’s benefit was received by the Department on 15 March 2000.

On 21 March 2000 the decision-maker disallowed the appellant’s claim to the extent of deciding that there was no entitlement to widow’s payment in respect of a death which occurred more than three months before the date of claim and that there was no entitlement to widow’s pension for the period 14 December 1999 to 14 December 1999 for the same reason.

Mrs K’s claim to widow’s benefit was received just one day outside the statutory time limit.

Mrs S

Mrs S’s husband passed away on 6 August 2000.  The Department received her claim for widow’s benefit on 31 January 2001.  On 14 February 2001 the decision-maker disallowed her claim to the extent that there was no entitlement to widow’s payment in respect of a death which occurred more than three months before the date of claim.

Mrs B

The appellant’s husband passed away on 16 October 1999.  The Department received the appellant’s claim for widow’s benefit on 25 January 2000.  On 27 January 2000 the decision-maker disallowed the appellant’s claim to the extent that there was no entitlement to widow’s payment in respect of a death which occurred more than three months before the date on claim and that there was no entitlement to widowed mothers allowance for the period 16 October 1999 to 24 October 1999 for the same reason.

4.	Both representatives were in agreement that Mr Millar had correctly set out the issues in the cases in his written skeleton argument.  He did so as follows:

“7.	There are three discrete issues in the [K] appeal.  Two of these issues are relevant to the [B] appeal and one to the [S] appeal.

 8.	The first issue ([K] only) is whether the Tribunal was correct to find that the appellant had made her claim to widow’s benefit within the prescribed time limit.  I will refer to this issue as the “Interpretation Act” issue.

 9.	The second issue ([K] and [B] only) is whether the Tribunal was correct to find that section 24(1) of the Northern Ireland Act 1998 could render the decision maker’s decision of no effect and whether the tribunal was correct to replace this decision with its own finding that the appellant was entitled to widow’s benefit.  I will refer to this issue as the “Northern Ireland Act” issue.

 10.	The third issue (all appeals) is whether the tribunal was correct to find that there was a violation of Article 8 of the European Convention on Human Rights by the imposition of the absolute time limit for claiming widow’s benefit.  I will refer to this issue as the “Article 8” issue.”

5.	Both representatives, as mentioned above, were of the view that the tribunal had erred in relation to all three issues.  I had the benefit of written submissions and skeleton arguments from both representatives.  With their agreement I do not repeat those arguments in detail here.  Mr Hatton in any event resiled from his submissions that section 7 of the Interpretation Act 1978 (or section 24 of the Interpretation Act 1954 as mistakenly referred to by the tribunal) was applicable.  He accepted, in light of the decision of the Court of Appeal in England and Wales in the case of Levy v Secretary of State for Work and Pensions [2006] EWCA. Civ 890 Mr Millar’s argument that that provision was not relevant to regulations 4 and 6 of the Social Security Claims and Payments Regulations (Northern Ireland) 1987.  I consider that this concession was correctly made.

Issue 1 - (The Interpretation Act issue)

6.	I am in agreement with the views of Dyson LJ (with which the other Justices of Appeal concurred) in paragraphs 29-32 of the Levy case as follows:

“29.	I do not, however, accept that the fact of sending a claim form by post is authorised by regulation 4(6)(b) means that section 7 of the 1978 Act applies to the scheme set out in regulations 4 and 6.  The service or sending of a claim is not of itself an act which is relevant for the purposes of determining “the date on which the claim is made or treated as having been made”: see section 1(2)(a) of the 1992 Act.  The Regulations contain detailed provisions as to the manner in which a claim must be made and regulation 6(1) defines the date on which a claim is made.  But the Regulations contain no provisions dealing with the date of service of the claim.  The date of service or sending of the claim is of no relevance to this scheme.  The date which is of relevance is the date on which the claim is made.  The Regulations define that date as the date on which the claim is received by an appropriate office, not the date of sending the claim.  Section 7 of the 1978 Act deals with the serving of documents and the date of deemed service.  In my opinion, therefore, although sending a claim form is authorised by regulation 4(6)(b), the date of service of the claim is irrelevant.  For this reason section 7 of the 1978 Act has no application.

30.	If, contrary to my opinion, section 7 of the 1978 Act does apply, then the question arises whether its application is excluded by the words “unless the contrary intention appears”.  Mr Stagg submits that the words in the parenthesis in section 7 show that its effect is not restricted to cases concerning service but applies to all cases where one person is required to bring a document to the attention of another, whatever language is used.  He then points out that regulation 6(1) does not in terms exclude the effect of section 7 of the 1978 Act.  He submits that the wording “the date on which it is received in an appropriate office” is not inconsistent with that being a date on which the claim form is deemed to be received by virtue of the other legislation.  Accordingly, he submits that regulation 6(1) does not show the “contrary intention” so as to exclude the effect of section 7.

31.	I do not agree.  I find it impossible to construe regulation 6(1) as meaning that the claim is made on the date on which, by operation of section 7 of the 1978 Act, it is deemed to be received.  Mr Stagg conceded that if regulation 6(1) had stated that a claim is made on the date “on which it is actually received in an appropriate office”, his argument would be difficult to sustain.

32.	In my judgment, even without the word “actually”, the regulation is referring to the date on which the date [sic] is actually received.  It is plain that regulation 6(1) requires that the claim be received in fact and not merely that it be sent.  I find it impossible to construe the words as having any other meaning.  The difference between “send” and “receive” is plain and obvious.  It is clear that the difference was understood by the draftsman of the regulations.  Regulation 4(6)(b) imposes an obligation on a person wishing to make a claim to “deliver or send the claim to an appropriate office” (my emphasis), but regulation 6(1) makes it clear that the date on which a claim is made is the date on which the claim is received in an appropriate office.  It follows that if section 7 applies, the contrary intention appears in regulation 6(1).”

7.	I find the tribunal’s reasoning somewhat difficult to follow on this matter.  It deals with submissions as to the applicability of section 26 of the Interpretation Act.  It does not clearly state whether or not it was applying section 7 of that Act which deals with deemed date of service not with date of actual receipt.  The representatives are agreed that the tribunal had no evidence for its finding as to the actual date of receipt of the claim form.  I consider them to be correct in that respect.  I set aside the decision in Mrs K’s case for that reason.

Issue 2 - (The Northern Ireland Act issue)

8.	I am again in agreement with the representatives that the tribunal erred in considering the provisions of section 24(1)(a) of the Northern Ireland Act 1998 in isolation from sections 71(4) and 95 thereof.  The tribunal does refer to section 71 but it does not refer to, nor does it appear to take into consideration, section 71(4).  The provisions of sections 24, 71 and 95 are set out as an appendix to this decision.

9.	It will be seen from section 71(4) that section 24(1)(a) is not to “apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section”.  Section 6(1) and (2) and (3) of the Human Rights Act 1998 provides as follows:-

“(1)	It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)	Subsection (1) does not apply to an act if –

(a)	as the result of one or more provisions of primary legislation, the authority could not have acted differently; or 

(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3)		In this section “public authority” includes -

(a)	a court or tribunal, and

(b)	any person certain of whose functions are functions of a public nature, 

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”

10.	I agree with the Department that regulations 19(1), (2) and (3) of the said Claims and Payments Regulations were intra vires and made under Article 52(1)(a) of the Social Security (Northern Ireland) Order 1986.  That provision allows regulations to be made requiring a claim for benefit to be made in such manner and within such time as may be prescribed.  I consider also, that regulations 19(1), (2) and (3) are clear and unambiguous and obliged the Departmental officials to reach the decisions under appeal to the tribunals.  Once the claims were received they could not have acted other than by making the relevant decisions. Regulation 19(2) is the provision specifying the three month time limit.  It is unnecessary that I reach any conclusion at this stage as to whether regulation 19(2) was in breach of Article 8 of the Convention.  I am satisfied that it can be read and given effect to in no other way than that it imposes a three month time limit for claiming without any provision for extension of time for good cause.  It has no good cause provision enabling that time limit to be extended.  Regulation 19 did contain good cause exceptions prior to April 1997 when it was re-drafted and the good cause exceptions removed.  The provision as re-drafted is, however, intra vires the said Article 52(1)(a) of the said 1986 Order.  That being so even if the relevant regulations were incompatible with Convention rights the decisions of the Departmental officials, being acts of public authorities, would by virtue of section 6(2) of the Human Rights Act, not be unlawful under subsection 1 thereof.  Therefore, by application of section 71(4) of the Northern Ireland Act, section 24(1)(a) of that Act would not apply to those decisions.  The tribunal erred in the cases in finding that it did apply to them and I set aside its decision in the cases of Mrs K and Mrs B for that reason.  In Mrs S’s case its reasoning was obiter on this point although incorrect.

Issue 3 - (The Article 8 issue)

11.	I have no power (and neither did the tribunal) to make a declaration of incompatibility with the Convention even if I thought one was justified.  The Human Rights Act itself came into effect on 2 October 2000.  Only in Mrs S’s case therefore could there be any argument raised on the direct applicability of Article 8.  Hers was the only case where the relevant decision was made after that date.  In Mrs S’s case the tribunal concluded that Article 8 was engaged and had been breached.  It concluded that “… the removal of the general “good cause” provisions from the rules relating to the claiming of a widow’s benefit, in April 1997, was not justified, and was unreasonable”.    In coming to this conclusion it reasoned that:

“… it is arguable that the imposition of time limits for claiming the relevant benefit, impairs the very essence of the right to claim it, and, given that the aim and purpose of the benefit is the promotion of family life, impinges on a right to a family life.  Further, it is also arguable that the removal of the possibility of an extension of a time limit, through the amendment of the general “good cause” provisions for not appealing in time, further impairs the essence of the right, by removing from entitlement to welfare benefits which promote family life, those who could most profit from such an entitlement.  The appeal tribunal is of the view that there is much in these arguments and comes to a finding that there was a violation of Article 8, based on them”.

12.	The Tribunal further reasoned:

“… the imposition of a time limit, the outer boundary of which is a date some three months from the date of the bereavement, for the claiming of a death-related benefit, is unreasonable.  It is a time limit with which most surviving spouses or families could not comply.  The time limit is certainly disproportionate, and impairs the very essence of the rights of surviving spouses, in general, to apply for death-related benefits”.

I am not aware of any evidence which entitled the tribunal to its conclusion that “most surviving spouses or families could not comply” with the relevant time limit.

13.	Mr Millar submits, in my view correctly, that the authorities on impairment of a right by a time limit relate mainly, if not entirely, to cases involving Article 6 of the Convention.  He submits, again correctly, that there is no Convention right to widow’s benefit or widow’s payment.  The Convention imposes no obligation on the State to provide this benefit.  Relying on the case of Couronne and Others v Crawley Borough Council and Others [2006] EWHC 1514 (Admin) para 60, Mr Millar submitted that it was the particular provision as to time limit which had to be considered.  I consider that submission to be correct.

14.	Mr Millar further submitted that the time limit provisions had nothing to do with a Convention right.  It had nothing to do with promoting respect for family life and there was no meaningful link between it and Article 8 rights.  He relied on the case of Secretary of State for Work and Pensions v M [2006] UKHL for his submission that the Strasbourg case-law did not lead to a conclusion that a “tenuous link” with the Convention right was sufficient (paragraph 60 of the M decision).  He submitted that the link between the time limit and Article 8 rights was tenuous.

15.	I did not understand Mr Hatton to submit that a tenuous link was enough to establish a link with Article 8 rights.  Indeed, as I have mentioned he conceded at hearing on all three of the Department’s grounds of appeal.  I accept his concessions.  I have decided, nevertheless, to consider his earlier written submissions on this issue.

16.	Mr Hatton did not assert that the State was under any obligation to provide a benefit for bereaved spouses.  He submitted however that once provided this benefit engaged Article 8.  He relied on the case of Hooper v Secretary of State for Work and Pensions [2003] EWCA Civ. 813 for this submission.  The Strasbourg jurisprudence (Petrovic v Austria) [1998] ECHR 487 (para 26) is to the effect that the State is under no obligation to provide a benefit to comply with Article 8.  However certain benefits may be intended to promote family life and affect the way it is organised.  The Department submits that Article 8 so far as it relates to family life cannot be relied on by childless surviving spouses.  For the reasons given below it is unnecessary that I reach a conclusion on that matter.

17.	Following Couroune it is the time limiting provisions in regulation 19(1), (2) and (3) that I must consider.  There is no Article 14 discrimination here.  All that is required by the relevant provisions is that the benefit be claimed within a three month time limit.  I do not think that can reasonably be said to evince any lack of respect for family life.  The State could not be said to be in breach of Article 8 if it provided no widows benefits and it is difficult to see how the imposition of the time limit for applying for the said benefit has the requisite link to Article 8.  It may be that a longer time limit (as previously) could have been imposed or a good cause provision introduced or preserved.  Indeed, I understand that a longer time limit is now in existence.  However, none of those matters indicate that the imposition of a time limit violates an Article 8 right.  As Lord Bingham stated at paragraph 4 of the M case:

“It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol to identify the core values which the provision is intended to protect.  But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all.  At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are.  At the outer extremity, it may not. … An exercise of judgment is called for.  Like my noble and learned friend … I cannot accept that even a tenuous link is enough.  That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind.”

I fail to see how the existence of a time limit for claiming the benefit can be said to “… impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life” (paragraph 5 of the M case).

I am doubtful that the three month time limit for claiming a benefit can in any way be linked to or have a “meaningful connection” with an Article 8 right in the absence of any Article 14 discrimination.  However, even if a link exists, it is too tenuous to be within the ambit of the right.  The right is not to the benefit but to the respect set out in Article 8.  The time limit in no way violates that respect.

18.	Even, therefore, had I not accepted Mr Hatton’s concession, I would have considered that the tribunal was wrong to conclude that the 3 month absolute time limit violated Article 8 rights.

19.	All three appeals succeed and all three tribunal decisions are set aside.  I consider it expedient that in each of the cases I give the decision which the tribunal should have given and I now do so.

20.	In each of the cases the Department’s decision is upheld.  Mrs K is not entitled to a widow’s payment nor to a widow’s pension for the period 14 December 1999 to 14 December 1999.  Mrs B is not entitled to a widow’s payment nor to widowed mother’s allowance for the period 16 October 1999 to 24 October 1999.  Mrs S is not entitled to a widow’s payment.  The Department wins its appeals.

(signed):  M F Brown

Commissioner

22 November 2006

Decision No:  C1/05-06(WB)
Decision No:  C2/05-06(WB)
Decision No:  C3/05-06(WB)

APPENDIX

Northern Ireland Act 1998

PART III
EXECUTIVE AUTHORITIES

Functions

Community law, Convention rights etc.

24.	(1)	A Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act –

(a) is incompatible with any of the Convention rights;

(b) is incompatible with Community law;

(c) discriminates against a person or class of person on the ground of religious belief or political opinion;

(d) in the case of an act, aids or incites another person to discriminate against a person or class of person on that ground; or

(e) in the case of legislation, modifies an enactment in breach of section 7

PART VII
HUMAN RIGHTS AND EQUAL OPPORTUNITIES

Human rights

Restrictions on application of rights

71.	(1)	Nothing in section 6(1)(c), 24 (1)(a) or 69(5)(b) shall enable a person – 

(a) to bring any proceedings in a court or tribunal on the ground that any legislation or act is incompatible with the Convention rights; or

(b) to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights.

(2)	Subsection (1) does not apply to the Attorney General, the Attorney General for Northern Ireland, the Advocate General for Scotland or the Lord Advocate. 

(3)	Section 6(2)(c) – 

(a) does not apply to a provision of an Act of the Assembly if the passing of the Act is, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, not unlawful under subsection (1) of that section; and

(b) does not enable a court or tribunal to award in respect of the passing of an Act of the Assembly any damages which it could not award on finding the passing of the Act unlawful under that subsection.

(4)	Section 24(1)(a) – 

(a) does not apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section; and

(b) does not enable a court or tribunal to award in respect of an act any damages which it could not award on finding the act unlawful under that subsection.

(5)	In this section “the Convention” has the same meaning as in the Human Rights Acts 1998.

PART IX
SUPPLEMENTAL

Savings for existing laws

95.	(1)	Except so far as otherwise provided by or under this Act, nothing in this Act shall affect the operation in or in relation to Northern Ireland of any law in force on the appointed day or passed or made before that day, including in particular Orders in Council made under – 

(a) section 69 of the Government of Ireland Act 1920;

(b) section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972;
(c) section 38 or 39 of the Northern Ireland Constitution Act 1973; or

(d) Schedule 1 to the Northern Ireland Act 1974

(2)	The laws continued by section 61 of the Government of Ireland Act 1920 shall continue to have effect to the extent provided for by that section (but with any modification necessary for adapting them to this Act)

(3)	No law made by the Assembly shall have effect so as to prejudice or diminish the rights or privileges of any pensioned officer of a local authority under the provisions of the Local Government (Ireland) Acts 1898 to 1919.

(4)	No provision of this Act shall –

(a) affect the operation before the coming into force of that provision of any Northern Ireland legislation; or

(b) render unlawful anything required or authorised to be done by any Act of Parliament, whenever passed.

(5)	Schedule 12 (which provides for the construction of certain references in existing laws) shall have effect, but subject to any provision made by or under this Act or by any Act of the Assembly.