Home Information Cases David George Head v Social Security Commissioner (2009)

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David George Head v Social Security Commissioner (2009)


The future right to an enhanced state pension did not constitute a "possession", within the meaning of that term under the European Convention on Human Rights 1950 Protocol 1 art.1, until retirement, at which point national law could determine what that entitlement was. On that basis the future right to an enhanced pension arising out of the payment of higher rate national insurance contributions was not a possession capable of being deprived by the operation of the Pension Schemes Act 1993 s.46.


The claimant (H) applied for judicial review of the defendant social security commissioner's refusal to grant him permission to appeal against the disallowance of his appeal by the Social Security Appeal Tribunal regarding the computation of his state retirement pension. For part of his working life H had been a member of an occupational pension scheme that was contracted out of the State Earnings Related Pension Scheme (SERPS). For another part of his working life, H was not contracted out of SERPS. Whilst he was contracted out of SERPS he paid a lower rate of national insurance contributions, and a higher rate when he was contracted in. It was H's case that the computation formula contained in the Pension Schemes Act 1993 s.46 for calculating his state retirement pension meant that what should be deducted under s.46(1)(i) was the additional pension that was attributable to earnings factors for those tax years for which he was in contracted out employment. The interested party Department for Work and Pensions, and the appeal tribunal, considered that the additional pension attributable to the whole period that H was in employment and SERPS was in operation should be deducted. The difference between the computations was considerable. The commissioner refused to grant H permission to appeal against that determination on the basis that the tribunal's decision disclosed no error of law or procedure. H submitted that his "possessions", within the meaning of that term in the European Convention on Human Rights 1950 Protocol 1 art.1, included the future right to an enhanced pension that he earned by the payment of the higher rate of national insurance contributions during his period of contracted-in employment and the operation of s.46 deprived him of those possessions. The department contended that the legislative framework did not deprive H of any possessions, it simply defined the benefit to which he was entitled on retirement and Strasbourg left it to national law to determine what that entitlement was.


(1) In principle the commissioner's refusal to grant permission to appeal was susceptible to judicial review, Bland v Chief Supplementary Benefit Officer (1983) 1 WLR 262 CA (Civ Div) applied. However, it was a well established principle that courts should be very slow to interfere with such decisions and it was first necessary to consider whether H could cross the procedural hurdle of bringing a review against such a determination. The case was a long way from meeting the "exceptional criteria" test that would otherwise have made judicial review of the commissioner's decision appropriate. Nor had there been any jurisdictional error within the narrow remit of that term, R (on the application of Sivasubramaniam) v Wandsworth County Court (2002) EWCA Civ 1738, (2003) 1 WLR 475 applied. Nor had there been a corruption or frustration of the process, R (on the application of Strickson) v Preston County Court (2007) EWCA Civ 1132 applied. Nor could it be said to have been an example of the plainest possible case to which judicial review was confined, R v Social Security Commissioner Ex p Pattni Times, July 15, 1992 CA (Civ Div) applied. Nor did the case demonstrate shortcomings of the appellate structure of the kind which would justify a departure from the exceptional circumstances test, R (on the application of Sinclair Gardens Investments (Kensington) Ltd) v Lands Tribunal (2005) EWCA Civ 1305, (2006) 3 All ER 650 applied. (2) H accepted that the department's interpretation of his entitlements under s.46 could not be challenged. It followed that there had been no deprivation of H's possessions for the purposes of the Convention. The fact that he paid a higher rate contribution for part of the time that SERPS was in operation did not alter that analysis, R (on the application of Carson) v Secretary of State for Work and Pensions (2003) EWCA Civ 797, (2003) 3 All ER 577 applied. Contracting out of SERPS had a number of consequences; the balance of advantage was a matter for the employer and employee to judge.

Application refused

Queen's Bench Division
Nicol J
Judgment date
7 May 2009

​LTL 13/5/2009 : (2009) ACD 63 : [2009] PLR 207 


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