Neutral Citation Number (unknown)
- File No.: CP/1014/2011
- Reported number:
- Judges:
- Appellant name: Secretary of State for Work and Pensions
- Respondent name: JG (RP)
- Date of decision:
- Date added:
- Date updated:
- Category: Residence and presence conditions / ordinary residence
- Notes: Effect of judgment of the Court of Justice in Case C-503/09 Lucy Stewart on ordinary residence requirements in claims for a Category D retirement pension, and for winter fuel payments
The decision
IN THE UPPER TRIBUNAL Case No. CP/1014/2011
ADMINISTRATIVE APPEALS CHAMBER
Before Judge Robin C A White
Decision: The decision of the tribunal of 15 February 2011 is erroneous in law. I set it aside. I remake the decision of the tribunal.
My substituted decision: the respondent is entitled to a Category D retirement pension on his claim made on 27 February 2009. The Secretary of State will now calculate the benefit payable from that date.
REASONS FOR DECISION
A. Preliminaries
1. I will refer, for ease of comprehension, in this decision to the appellant as “the Secretary of State” and to the respondent as “the claimant”.
2. I will refer throughout this decision to European Union law, even though some of the circumstances of this claim predate the entry into force on 1 December 2009 of the Treaty of Lisbon.1
3. This is one of two appeals by the Secretary of State in respect of the claimant. The other appeal is CIS/1015/2011 which concerns his claim for winter fuel payments.
4. The issue in this appeal is whether the claimant is entitled to a Category D retirement pension on a claim made on 27 February 2009.
5. The original decision had disallowed the claimant’s claim on the basis that he was not ordinarily resident in Great Britain on his 80th birthday, since he was on that date ordinarily resident in Gibraltar. The Secretary of State has subsequently change his position, but nevertheless argues that there is still no entitlement to the retirement pension which had been claimed.
6. The appeal was heard by a tribunal on 15 February 2011. All parties are now agreed that the decision of the tribunal cannot stand, since it asked itself the wrong question, namely whether Gibraltar was part of the United Kingdom, and then compounded the error by giving the wrong answer to that question. I agree that this was quite the wrong question, and this constitutes an error of law. I set the tribunal’s decision aside.
7. The appeal comes before me with the permission of a judge of the First-tier Tribunal.
8. I am urged by the Secretary of State to remake the decision of the tribunal. I consider this an appropriate course of action. The remainder of this decision addresses my assessment of the claimant’s entitlement to the retirement pension he had claimed.
B. The factual background
9. I have constructed this factual background from a number of documents in the bundle before me.
10. The claimant is a British national. He was born in Dublin on 30 May 1928 and lived in Ireland until December 1948.
11. The claimant lived in the United Kingdom between December 1948 and 31 July 1950. He was employed between January 1949 and 31 July 1950 and paid Class I national insurance contributions.
12. The claimant moved to Kenya on 1 August 1950. He was employed in the Kenyan police force. He remained in Kenya until 1963. He had periods of three months leave in the United Kingdom in 1954, and 1957, and a shorter period of leave in 1961.
13. The claimant returned to the United Kingdom on 7 October 1963 and remained until 28 November 1964.
14. From 28 November 1964 until 8 December 1968, the claimant lived and worked in Australia.
15. From 1969 to 1971, the claimant worked in the Sultan of Oman’s army.
16. From 1972 to 1983, the claimant worked in Africa and Saudi Arabia.
17. In 1983 the claimant moved to Ireland and lived there until 31 July 1994.
18. In 1994 the claimant moved to the Isle of Man, and lived there until 2 June 2003. In 1995, the claimant was awarded a 30 per cent. Isle of Man retirement pension from 3 December 1993 at the weekly rate of £17.46.
19. From 2 June 2003 to date, the claimant has lived in Gibraltar.
20. It would appear that the claimant was awarded an Irish pro-rata pre-1953 contributory old age pension from 5 May 2000 based on 80 Irish contributions up to December 1948 taken together with 262 Australian contributions which were taken into account under the bilateral agreement between Ireland and Australia. The initial rate of this pension was €21.60, which was raised in 2008 to €36.60.
21. The claimant has paid Class 3 voluntary national insurance contributions in the United Kingdom in respect of the contribution years 1984/85 to 1992/93 (when he was living in Ireland). On 2 April 2009, he was awarded a Category A retirement pension of £16.76 per week from 2 November 1993, representing a 28 per cent. pro rata pension.
22. On 27 February 2009, the claimant made a claim for a Category D retirement pension. A decision refusing the claim was made on 8 April 2010, and the claimant appealed against this refusal to award him the pension.
C. The national legislation
23. Entitlement to a Category D retirement pension is governed by section 78(3) and (4) of the Social Security Contributions and Benefits Act 1992, which, so far as relevant, provides as follows:
(3) A person who is over the age of 80 and satisfies such conditions as may be prescribed shall be entitled to a Category D retirement pension at the appropriate weekly rate if—
(a) he is not entitled to a Category A, Category B or Category C retirement pension; or
(b) he is entitled to such a pension, but it is payable at a weekly rate which, disregarding those elements specified in subsection (4) below, is less than the appropriate weekly rate.
(4) The elements referred to in subsection (3) above are—
(a) any additional pension;
(b) any increase so far as attributable to—
(i) any additional pension, or
(ii) any increase in a guaranteed minimum pension;
(c) any graduated retirement benefit; … .
24. The prescribed conditions for a Category D retirement pension are to be found in regulation 10 of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979, which provide:
10.(1) The conditions for entitlement to a category D retirement pension shall be that the person concerned—
(a) was resident in Great Britain for a period of at least 10 years in any continuous period of 20 years which included the day before that on which he attained the age of 80 or any day thereafter; and
(b) was ordinarily resident in Great Britain either—
(i) on the day he attained the age of 80; or
(ii) if he was not so ordinarily resident on that day and the date of his claim for the pension was later than that day, on the date of his claim, so however that where a person satisfied this condition under this head he shall be deemed to have satisfied it on the date that he became so ordinarily resident.
25. The relevant 20 year period in this case falls within the period from 29 May 1988 to 27 February 2009. In this period, the claimant lived initially in Ireland, then in the Isle of Man for a period of nearly nine years, and then in Gibraltar for five years and eight months. Gibraltar is not part of Great Britain: see paragraphs 16-19 of R(IS) 8/06, and see below.
26. It follows that the claimant is not entitled to the pension he has claimed unless he can show some provision which over-rides the national legislation and enables him to be treated as resident in Great Britain for the purposes of his claim. Those provisions arise, in part, under European Union law.
27. The Secretary of State indicated in his submission dated 28 June 2012 that the condition in regulation 10(b) requiring ordinary residence in Great Britain on the claimant’s 80th birthday or on the date of claim, if later, cannot be applied to deny entitlement to persons resident in other Member States of the European Union following the decision of the Court of Justice in Case C-503/09 Lucy Stewart, Judgment of 21 July 2011 (“the Stewart case”). But the application of the principles in the Stewart case does not mean that the claimant is automatically to be treated as if resident in Great Britain on the date of his claim.
D. The questions that need to be explored
28. It would therefore appear that the following questions arise in determining the claimant’s entitlement to a Category D retirement pension on his claim made on 27 February 2009:
(a) Is the claimant a beneficiary of European Union law?
(b) If so, how should regulation 10(b) be interpreted in the light of the judgment of the Court of Justice in the Stewart case?
(c) If regulation 10(b) provides no bar to the claim, can the claimant show residence treated as residence in Great Britain for the requisite period as required by regulation 10(a)? Answering this question involves determining the status of both the Isle of Man, and Gibraltar, and how the United Kingdom’s membership of the European Union impacts upon matters pertaining to the Isle of Man and Gibraltar.
E. The status of Gibraltar
29. Gibraltar was ceded in perpetuity by Spain to Great Britain under the Treaty of Utrecht 1713. It is a British Crown Colony. It is not part of the United Kingdom. This separate status is recognized under national law, international law and European Union law.
30. In Case C-145/04 Spain v United Kingdom [2006] ECR I-7917, the Court of Justice described the status of Gibraltar as follows:
19. In Community law, Gibraltar is a European territory for whose external relations a Member State is responsible within the meaning of Article 299(4) EC and to which the provisions of the EC Treaty apply. The Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the adjustments to the Treaties (OJ 1972 L 73, p. 14) provides, however, that certain parts of the Treaty are not to apply to Gibraltar.
31. European Union law on citizenship of the Union and the free movement of persons applies to Gibraltar.
32. The Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974 (SI 1974 No 555) (“the Gibraltar Order”) provides:
1 Any reference in the following paragraphs to a territory shall be construed as a reference to the territory of the United Kingdom or Gibraltar or both as the case may be and any reference to a child shall be construed as a reference to any person for whom family allowances are payable under the legislation in question.
2(a) Any person shall have the same rights and liabilities in relation to social security other than family allowances, as he would have had if the United Kingdom and Gibraltar had been separate Member States of the European Economic Community.
(b) For the purpose of giving effect to paragraph (a) above the same procedures shall so far as is practicable be adopted in relation to the person and benefit concerned as would have been applicable had the United Kingdom and Gibraltar been such separate Member States.
3 For the purpose of the right to receive payment of a pension for old age, widow’s benefit, guardian’s allowance, child’s special allowance or dependency benefits in respect of any such pension, benefit or allowance, under the legislation applicable to either the United Kingdom, or Gibraltar, any period during which a person, not subject to paragraph 2, was present or ordinarily resident in the other territory shall be treated as a period during which he was present or ordinarily resident, as the case may be, in the territory to which the legislation applies.
F. The status of the Isle of Man
33. The Isle of Man is a Crown Dependency. As such the Isle of Man is self‑governing. The Isle of Man is not part of the United Kingdom but is a territory for whose international relations the United Kingdom is responsible in international law. The United Kingdom is responsible for the defence of the Isle of Man and for providing consular services. The Island makes an annual contribution to the United Kingdom in recognition of defence and other common services provided on its behalf.
34. The Isle of Man is not part of the European Union but it has a special, limited, relationship with the European Union set out in Protocol 3 to the United Kingdom's Treaty of Accession. In essence, the Isle of Man is part of the customs union allowing free movement of goods between the Isle of Man and the Member States of the European Union, but, apart from Article 4 of the Protocol, other provisions of European Union law do not apply to the Isle of Man.
35. Article 4 of Protocol 3 provides:
The authorities of [the Isle of Man] shall apply the same treatment to all natural and legal persons of the Community.
36. The Social Security (Isle of Man) Order 1977 (SI 1977 No 2150) (as amended) (“the Isle of Man Order”) made under s.143 of the Social Security Act 1975 makes provision for modification and adaptation of the social security legislation to co-ordinate social security provision between the Isle of Man and the United Kingdom.
37. Paragraph 2(1) of the Schedule to the Order provides:
Subject to paragraph (5) of this Article, for the purposes of all or any of the provisions of the system of social security established by the Acts–
(a) acts, omissions and events and in particular residence, presence, employment (including employment as a mariner or airman), the occurrence of an industrial accident or the development of any prescribed disease, the payment, crediting or treating as paid of contributions (including graduated contributions and payments in lieu of graduated contribution), the refund of contributions paid in excess of the annual maximum amounts payable and the claiming or repayment of benefit; and
(b) the operation of any provisions as to exception from liability to pay contributions,
having effect for all or any of those purposes in one territory shall have corresponding effect for all or any of those purposes in the other territory.
38. Paragraph (5) concerns mobility allowance and has no relevance to the issues before me in this appeal.
G. Is the claimant a beneficiary of European Union law?
39. The claimant is a national of the United Kingdom. As such, he is by virtue of Article 20 TFEU and its predecessor, Article 17 EC, a citizen of the European Union entitled to the constitutional rights which flow from Articles 18 to 22 TFEU.
40. However, citizenship of the Union does not, of itself, obviate the need for a claimant to meet conditions which may be imposed by national legislation. What it does enable him to do is to use European Union law to challenge national requirements which are incompatible with European Union law.
H. How should regulation 10(b) be interpreted in the light of the judgment of the Court of Justice in the Stewart case?
41. One consequence of the judgment of the Court of Justice in the Stewart case, Judgment of 21 July 2011, is that a claimant cannot be denied entitlement to a Category D retirement pension solely on the grounds that the claimant was not resident in Great Britain on the date of his claim.
42. However, as the Secretary of State rightly points out, that does not relieve a claimant who is resident in another Member State from showing that he or she has a genuine and sufficient connection with the Member State in which the claim is made.
43. But was the claimant here resident in another Member State when he made his claim on 27 February 2009 for a Category D retirement pension?
44. Answering this question requires an analysis of paragraphs 2 and 3 of the Gibraltar Order. I have not found these paragraphs at all easy to unravel. I am assisted by the observations of the Commissioner in R(IS) 8/06 who said:
17. … . There is no general provision to the effect that residence on a British registered boat is to be treated as residence in Great Britain when the boat is not in British waters and, in particular, there is nothing in the Merchant Shipping Act 1995 to that effect. The Social Security (Mariners Benefits) Regulations 1975 (SI 1975/529) have no application to the present case. Nor is there any provision to the effect that residence in a British colony is to be treated as residence in Great Britain. Even residence in Northern Ireland is treated as residence in Great Britain for social security purposes only because there is specific provision to that effect in paragraph 2(1) of Schedule 1 to the Social Security (Northern Ireland Reciprocal Arrangements) Regulations 1976 (SI 1976/1003).
18. In respect of Gibraltar there is limited provision to a similar effect in paragraph 3 of the Schedule to the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974 (SI 1974/555) but that applies only where the person is “not subject to paragraph 2”. Paragraph 2(a) provides:
“Any person shall have the same rights and liabilities in relation to social security other than family allowances, as he would have had if the United Kingdom and Gibraltar had been separate Member States of the European Economic Community.”
The words “not subject to paragraph 2” in paragraph 3 must therefore be taken to mean “not within the scope of legislation of the European Economic Community relating to social security”, so that paragraph 3 applies only to persons outside the scope of Regulation (EEC) 1408/71, just as, say, the Family Allowances, National Insurance and Industrial Injuries (Spain) Order 1975 (SI 1975/415) does by virtue of Article 6 of Regulation (EEC) 1408/71 which provides that the Regulation replaces any social security convention between Member States. The claimant is within the scope of Regulation (EEC) 1408/71 because he is a citizen of the United Kingdom and is a retired worker. Therefore his residence in Gibraltar does not count as residence in Great Britain as a matter of domestic law except when provisions of Regulation (EEC) 1408/71 would have that effect. I shall consider those provisions below.
45. I would add one rider to the proposition in the penultimate sentence of paragraph 18 cited above, which I would amend to read:
Therefore his residence in Gibraltar does not count as residence in Great Britain as a matter of domestic law except when provisions of Regulation (EEC) 1408/71, or some other binding rule of European Union law, would have that effect
46. The proposition expressed in R(IS) 8/06 now needs to be qualified by the effect of the principles set out by the Court of Justice in the Stewart case. In that case, the Court of Justice ruled that Article 21(1) TFEU precludes a Member State from making the award of a benefit subject to a condition of past presence to the exclusion of any other element enabling the existence of a genuine connection between the claimant and the Member State in which the claim is made to be determined, or to a condition of presence of the claimant on the date on which the claim is made.
47. I conclude that paragraph 2 of the Gibraltar Order applies at this stage. I accept, following R(IS) 8/06, that the words "not subject to paragraph 2" mean not being within the scope of European Union law on social security. The claimant is plainly within the personal scope of Regulation 1408/71, and retirement pensions are within the material scope of the Regulation as old-age pensions. That brings the claimant within the scope of paragraph 2. The effect is that the claimant is then entitled to have Gibraltar treated as if it were in another Member State.
48. That still does not obviate the need for the claimant to show a genuine and sufficient connection with Great Britain in order for his claim to be accepted by the United Kingdom authorities.
Can the claimant show a genuine and sufficient connection with Great Britain as at the date of his claim?
49. The claimant describes his connections with Great Britain as follows:
My father, uncle, two cousins volunteered for military service. Two cousins were killed and my uncle seriously wounded and as a result of a minor accident died of his war wounds—at an early age.
My father served till after the war ended and was honourably discharged in December 1918.
WORLD WAR II 1939-1945
Several of my first cousins and some distant cousins volunteered for military service (from Eire). Two lost their lives and one was awarded the Victoria Cross. My father worked in UK for a short period on war work.
MY CONNECTION WITH THE UNITED KINGDOM
1. Born in Ireland 1928 a UK national.
2. Lived and worked in UK 1948 – 31st July 1950
3. Appointed to HM Colonial Service later renamed HM Overseas Civil Service. These services were under control of the Colonial Secretary who was responsible for our appointment, terms of service, promotion, discipline.
4. As UK Crown Servants working in Kenya we were required to sign the Official Secrets Act conditions on a life long basis (a normal condition) giving me a life long connection with the United Kingdom.
5. During my Kenya service I spent three years in the Mau Mau conflict zone—like other front line fighters I was awarded the Africa General Service medal bearing HM the Queen’s image thus another link with the United Kingdom.
6. My work in Kenya was recognised by HM the Queen in her Birthday Honours Awards another UK connection or link.
7. I have been a UK National for 84 years another link with the United Kingdom.
8. I have had a UK passport for 62 years which gives me a right of residence in the UK—another link.
9. I receive a contributory Old Age Pension of £31.95 per week giving me a link (as in the case of Ms Stewart) with the Social Security System.
10. I receive the annual Christmas bonus of £10—another UK link.
50. I am content to accept as correct the factual basis of all the connections to which the claimant makes reference for the purposes of determining whether he can show a genuine and sufficient connection with Great Britain in order to ground his claim for a Category D retirement pension.
51. Determining whether there is a genuine and sufficient connection with Great Britain as at the date of the claim is a question of fact to be determined in the light of all the circumstances. In this case, this involves a weighing of the relevant factors which show some connection against those which show no connection.
52. The following are factors which show a connection with Great Britain as at the date of claim:
The claimant is a British national who holds a British passport.
The claimant has lived in the United Kingdom between (a) December 1948 and July 1950, and (b) November 1963 and October 1964. He made a number of three month visits to the United Kingdom when on leave from the Kenyan Police Force.
Much of his employment history has a connection with the United Kingdom, through the colonial service or the overseas civil service, in connection with which he was required to sign the Official Secrets Act.
The claimant is in receipt of a United Kingdom contributory pension (based upon Class I contributions during his employment in 1949 and 1950 and Class 3 contributions paid on the basis of his employment in Ireland between 1984 and 1994) and of the annual Christmas bonus.
53. The following are factors which show no connection with Great Britain as at the date of claim:
The claimant has actually lived in Great Britain only for two relatively short periods. He last lived in the Great Britain in 1964.
The claimant appears to have no current family connections in the United Kingdom. In his comprehensive list of connections with the United Kingdom, he certainly mentions none.
The claimant has lived in Gibraltar since 2 June 2003, having previously lived in the Isle of Man between May 1998 and June 2003.
54. Balancing the positive and negative factors, I conclude that the claimant did show a genuine and sufficient connection with Great Britain when he made his claim for a Category D retirement pension on 27 February 2009. He is accordingly eligible to make a claim for a Category D retirement pension.
55. I regard as the decisive factor that he is in receipt of a Category A retirement pension and is as a consequence entitled to the annual Christmas bonus. His Category A retirement pension is uprated annually in accordance with the usual practice. He accordingly has a continuing connection with the Great Britain social security system in relation to his retirement pension.
56. Although receipt of a Category A retirement pension is normally a disqualifying condition under section 78 of the Social Security Contributions and Benefits Act 1992 in relation to a Category D retirement pension, there is an exception where the amount of the Category A retirement pension is less than the amount of the Category D retirement pension. That is the case here. This link between the Category A retirement pension and a Category D retirement pension has reinforced my conclusion that the claimant shows a genuine and sufficient connection with Great Britain for him to be able to claim a Category D retirement pension.
57. I need to add (in the light of my decision in the linked appeal relating to winter fuel payments: CIS/1015/2011) that I consider that the genuine and sufficient connection test following the judgment in the Stewart case must be applied taking account of the particular benefit being claimed. The test is one of a genuine and sufficient connection with Great Britain for the purposes of the benefit being claimed. So it is possible to show a genuine and sufficient connection for one benefit but not for another in the light of the same background.
58. The particular feature in relation to the claim before me in this appeal is the relationship, in the circumstances of this case, between the Category A retirement pension in payment and the Category D retirement pension, which effectively operates as a top up for those aged 80 or over whose Category A retirement pension is paid at a level below that of the Category D retirement pension.
I. If regulation 10(b) provides no bar to the claim, can the claimant show residence treated as residence in Great Britain for the requisite period as required by regulation 10(a)?
59. In so far as it is relevant, Regulation 1408/71 applies to this case, since the date of the decision was 8 April 2010. Regulation 883/2004 which replaced Regulation 1408/71 entered into force on 1 May 2010. The claimant is plainly within the personal scope of Regulation 1408/71 as a person who had been insured in at least two Member States and had retired from work. Retirement pensions are within the material scope of the Regulation as old-age benefits.
60. For the reasons set out in the Secretary of State’s submission to me dated 28 June 2012, there is no objection to the requirement for completion of periods of residence in order to acquire an entitlement to a non-contributory pension. I would summarise those reasons as follows.
61. Article 10 of Regulation 1408/71, which is made subject to other provisions of the Regulation, precludes a Member State from making residence a condition of continuing to receive a listed type of benefit, entitlement to which has already been acquired, on moving to another Member State.
62. In relation to old-age benefits, Articles 44 to 51 clearly indicate that it is permissible to make entitlement to old-age benefits conditional on the completion of periods of insurance or residence. Co-ordination is achieved under these provisions by requiring periods of insurance or residence in other Member States to be taken into account in determining whether an overall period of insurance or residence is satisfied.
63. However, the principle of aggregation does not apply to old-age benefits in the form of pensions in quite the same way as it applies in the case of certain other benefits, since pensions are paid by each Member State where the claimant has been insured or has completed periods of residence on a pro rata basis. Aggregation of periods of residence or insurance merely enables a total period of insurance or residence to be achieved, and avoids fragmentation of periods of insurance or residence adversely affecting a worker. The outcome is that a person who has been insured or resident in a number of Member States is likely to end up with a portfolio of pensions from more than one Member State.
64. There are two periods of residence in issue: (a) residence in Gibraltar from 2 June 2003 to the date of claim; and (b) earlier residence in the Isle of Man until the claimant move to Gibraltar.
Can residence in Gibraltar be treated as residence in Great Britain?
65. It would seem to me that whether paragraph 2 or paragraph 3 of the Gibraltar Order applies to the claimant, the outcome is that his residence in Gibraltar is treated as residence in Great Britain for the purposes of a claim to a Category D retirement pension.
66. If European Union law rules apply, then the provisions of Regulation 1408/71 provide that, in relation to old age benefits, periods of residence in Gibraltar may be used to achieve a total qualifying period leading to a retirement pension required under the national legislation, since Gibraltar is to be treated as if it were a separate Member State of the European Union. My view is that paragraph 2 applies to the claimant.
67. If European Union rules do not apply, then paragraph 3 provides that residence in Gibraltar is to be treated as residence in Great Britain.
68. That gives the claimant a period of residence to be taken into account under regulation 10(a) of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979 in the relevant period from 29 May 1998 to 1 June 2003.
69. I should add that I do not agree with the Secretary of State’s proposition that the claimant would need to show that his residence in Gibraltar was residence which would potentially lead to a benefit identical to that claimed in the United Kingdom. To introduce such a requirement would be moving towards harmonisation, whereas Regulation 1408/71 is about co-ordination: that is, making different social security systems work together.
Can residence in the Isle of Man be treated as residence in Great Britain?
70. As the Secretary of State rightly points out, the Isle of Man Order is a reciprocal agreement between the authorities in Great Britain and the authorities in the Isle of Man.
71. I agree with the Secretary of State that a person who has no period of residence in Great Britain in the relevant period cannot rely on the Order in order to have a period of residence in the Isle of Man treated as a period of residence in Great Britain.
72. However, in this case, the operation of the Gibraltar Order means that a period of residence in Gibraltar is treated as a period of residence in Great Britain. This provides the necessary connection with Great Britain for the Isle of Man Order to apply.
73. Paragraph 2 of the Isle of Man Order is drafted in broad terms and makes particular reference to residence. I do not see that deemed residence in Great Britain is excluded. If that is right (which, in my view, it is), then the claimant’s residence in the Isle of Man has the effect under the Order of being deemed to be residence in Great Britain.
74. That gives the claimant a period of residence to be taken into account under regulation 10(a) of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979 in the relevant period from 2 June 2003 to 27 February 2009.
75. When this period is added to the period of deemed residence in Great Britain arising from his actual residence in Gibraltar, the ten year qualifying period of residence in Great Britain in order to qualify for a Category D retirement pension is satisfied.
76. I note that the Secretary of State argues that there is a risk of absurd results if such an approach is taken, but his enunciation of those absurd results is predicated on a case in which a person has no period of residence in Great Britain, and where there has been no movement between Great Britain and the Isle of Man. But since there is in this case, in my view, a deemed period of residence in Great Britain and an actual period of residence in the Isle of Man, it would seem that there is no absurdity of result.
77. The outcome is that the claimant is entitled to a Category D retirement pension on his claim made on 27 February 2009 since:
he can establish deemed residence in Great Britain for a period of at least 10 years in any continuous period of 20 years which included the day before that on which he attained the age of 80 or any day thereafter;
the amount of his Category A retirement pension is less than the rate of the Category D retirement pension.
78. My formal decision in substitution for that of the tribunal is set out at the head of this decision. The Secretary of State will now determine the amount of the pension payable, and the arrears due to the claimant.
Signed on the original Robin C A White
on 26 June 2013 Judge of the Upper Tribunal
ADMINISTRATIVE APPEALS CHAMBER
Before Judge Robin C A White
Decision: The decision of the tribunal of 15 February 2011 is erroneous in law. I set it aside. I remake the decision of the tribunal.
My substituted decision: the respondent is entitled to a Category D retirement pension on his claim made on 27 February 2009. The Secretary of State will now calculate the benefit payable from that date.
REASONS FOR DECISION
A. Preliminaries
1. I will refer, for ease of comprehension, in this decision to the appellant as “the Secretary of State” and to the respondent as “the claimant”.
2. I will refer throughout this decision to European Union law, even though some of the circumstances of this claim predate the entry into force on 1 December 2009 of the Treaty of Lisbon.1
3. This is one of two appeals by the Secretary of State in respect of the claimant. The other appeal is CIS/1015/2011 which concerns his claim for winter fuel payments.
4. The issue in this appeal is whether the claimant is entitled to a Category D retirement pension on a claim made on 27 February 2009.
5. The original decision had disallowed the claimant’s claim on the basis that he was not ordinarily resident in Great Britain on his 80th birthday, since he was on that date ordinarily resident in Gibraltar. The Secretary of State has subsequently change his position, but nevertheless argues that there is still no entitlement to the retirement pension which had been claimed.
6. The appeal was heard by a tribunal on 15 February 2011. All parties are now agreed that the decision of the tribunal cannot stand, since it asked itself the wrong question, namely whether Gibraltar was part of the United Kingdom, and then compounded the error by giving the wrong answer to that question. I agree that this was quite the wrong question, and this constitutes an error of law. I set the tribunal’s decision aside.
7. The appeal comes before me with the permission of a judge of the First-tier Tribunal.
8. I am urged by the Secretary of State to remake the decision of the tribunal. I consider this an appropriate course of action. The remainder of this decision addresses my assessment of the claimant’s entitlement to the retirement pension he had claimed.
B. The factual background
9. I have constructed this factual background from a number of documents in the bundle before me.
10. The claimant is a British national. He was born in Dublin on 30 May 1928 and lived in Ireland until December 1948.
11. The claimant lived in the United Kingdom between December 1948 and 31 July 1950. He was employed between January 1949 and 31 July 1950 and paid Class I national insurance contributions.
12. The claimant moved to Kenya on 1 August 1950. He was employed in the Kenyan police force. He remained in Kenya until 1963. He had periods of three months leave in the United Kingdom in 1954, and 1957, and a shorter period of leave in 1961.
13. The claimant returned to the United Kingdom on 7 October 1963 and remained until 28 November 1964.
14. From 28 November 1964 until 8 December 1968, the claimant lived and worked in Australia.
15. From 1969 to 1971, the claimant worked in the Sultan of Oman’s army.
16. From 1972 to 1983, the claimant worked in Africa and Saudi Arabia.
17. In 1983 the claimant moved to Ireland and lived there until 31 July 1994.
18. In 1994 the claimant moved to the Isle of Man, and lived there until 2 June 2003. In 1995, the claimant was awarded a 30 per cent. Isle of Man retirement pension from 3 December 1993 at the weekly rate of £17.46.
19. From 2 June 2003 to date, the claimant has lived in Gibraltar.
20. It would appear that the claimant was awarded an Irish pro-rata pre-1953 contributory old age pension from 5 May 2000 based on 80 Irish contributions up to December 1948 taken together with 262 Australian contributions which were taken into account under the bilateral agreement between Ireland and Australia. The initial rate of this pension was €21.60, which was raised in 2008 to €36.60.
21. The claimant has paid Class 3 voluntary national insurance contributions in the United Kingdom in respect of the contribution years 1984/85 to 1992/93 (when he was living in Ireland). On 2 April 2009, he was awarded a Category A retirement pension of £16.76 per week from 2 November 1993, representing a 28 per cent. pro rata pension.
22. On 27 February 2009, the claimant made a claim for a Category D retirement pension. A decision refusing the claim was made on 8 April 2010, and the claimant appealed against this refusal to award him the pension.
C. The national legislation
23. Entitlement to a Category D retirement pension is governed by section 78(3) and (4) of the Social Security Contributions and Benefits Act 1992, which, so far as relevant, provides as follows:
(3) A person who is over the age of 80 and satisfies such conditions as may be prescribed shall be entitled to a Category D retirement pension at the appropriate weekly rate if—
(a) he is not entitled to a Category A, Category B or Category C retirement pension; or
(b) he is entitled to such a pension, but it is payable at a weekly rate which, disregarding those elements specified in subsection (4) below, is less than the appropriate weekly rate.
(4) The elements referred to in subsection (3) above are—
(a) any additional pension;
(b) any increase so far as attributable to—
(i) any additional pension, or
(ii) any increase in a guaranteed minimum pension;
(c) any graduated retirement benefit; … .
24. The prescribed conditions for a Category D retirement pension are to be found in regulation 10 of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979, which provide:
10.(1) The conditions for entitlement to a category D retirement pension shall be that the person concerned—
(a) was resident in Great Britain for a period of at least 10 years in any continuous period of 20 years which included the day before that on which he attained the age of 80 or any day thereafter; and
(b) was ordinarily resident in Great Britain either—
(i) on the day he attained the age of 80; or
(ii) if he was not so ordinarily resident on that day and the date of his claim for the pension was later than that day, on the date of his claim, so however that where a person satisfied this condition under this head he shall be deemed to have satisfied it on the date that he became so ordinarily resident.
25. The relevant 20 year period in this case falls within the period from 29 May 1988 to 27 February 2009. In this period, the claimant lived initially in Ireland, then in the Isle of Man for a period of nearly nine years, and then in Gibraltar for five years and eight months. Gibraltar is not part of Great Britain: see paragraphs 16-19 of R(IS) 8/06, and see below.
26. It follows that the claimant is not entitled to the pension he has claimed unless he can show some provision which over-rides the national legislation and enables him to be treated as resident in Great Britain for the purposes of his claim. Those provisions arise, in part, under European Union law.
27. The Secretary of State indicated in his submission dated 28 June 2012 that the condition in regulation 10(b) requiring ordinary residence in Great Britain on the claimant’s 80th birthday or on the date of claim, if later, cannot be applied to deny entitlement to persons resident in other Member States of the European Union following the decision of the Court of Justice in Case C-503/09 Lucy Stewart, Judgment of 21 July 2011 (“the Stewart case”). But the application of the principles in the Stewart case does not mean that the claimant is automatically to be treated as if resident in Great Britain on the date of his claim.
D. The questions that need to be explored
28. It would therefore appear that the following questions arise in determining the claimant’s entitlement to a Category D retirement pension on his claim made on 27 February 2009:
(a) Is the claimant a beneficiary of European Union law?
(b) If so, how should regulation 10(b) be interpreted in the light of the judgment of the Court of Justice in the Stewart case?
(c) If regulation 10(b) provides no bar to the claim, can the claimant show residence treated as residence in Great Britain for the requisite period as required by regulation 10(a)? Answering this question involves determining the status of both the Isle of Man, and Gibraltar, and how the United Kingdom’s membership of the European Union impacts upon matters pertaining to the Isle of Man and Gibraltar.
E. The status of Gibraltar
29. Gibraltar was ceded in perpetuity by Spain to Great Britain under the Treaty of Utrecht 1713. It is a British Crown Colony. It is not part of the United Kingdom. This separate status is recognized under national law, international law and European Union law.
30. In Case C-145/04 Spain v United Kingdom [2006] ECR I-7917, the Court of Justice described the status of Gibraltar as follows:
19. In Community law, Gibraltar is a European territory for whose external relations a Member State is responsible within the meaning of Article 299(4) EC and to which the provisions of the EC Treaty apply. The Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the adjustments to the Treaties (OJ 1972 L 73, p. 14) provides, however, that certain parts of the Treaty are not to apply to Gibraltar.
31. European Union law on citizenship of the Union and the free movement of persons applies to Gibraltar.
32. The Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974 (SI 1974 No 555) (“the Gibraltar Order”) provides:
1 Any reference in the following paragraphs to a territory shall be construed as a reference to the territory of the United Kingdom or Gibraltar or both as the case may be and any reference to a child shall be construed as a reference to any person for whom family allowances are payable under the legislation in question.
2(a) Any person shall have the same rights and liabilities in relation to social security other than family allowances, as he would have had if the United Kingdom and Gibraltar had been separate Member States of the European Economic Community.
(b) For the purpose of giving effect to paragraph (a) above the same procedures shall so far as is practicable be adopted in relation to the person and benefit concerned as would have been applicable had the United Kingdom and Gibraltar been such separate Member States.
3 For the purpose of the right to receive payment of a pension for old age, widow’s benefit, guardian’s allowance, child’s special allowance or dependency benefits in respect of any such pension, benefit or allowance, under the legislation applicable to either the United Kingdom, or Gibraltar, any period during which a person, not subject to paragraph 2, was present or ordinarily resident in the other territory shall be treated as a period during which he was present or ordinarily resident, as the case may be, in the territory to which the legislation applies.
F. The status of the Isle of Man
33. The Isle of Man is a Crown Dependency. As such the Isle of Man is self‑governing. The Isle of Man is not part of the United Kingdom but is a territory for whose international relations the United Kingdom is responsible in international law. The United Kingdom is responsible for the defence of the Isle of Man and for providing consular services. The Island makes an annual contribution to the United Kingdom in recognition of defence and other common services provided on its behalf.
34. The Isle of Man is not part of the European Union but it has a special, limited, relationship with the European Union set out in Protocol 3 to the United Kingdom's Treaty of Accession. In essence, the Isle of Man is part of the customs union allowing free movement of goods between the Isle of Man and the Member States of the European Union, but, apart from Article 4 of the Protocol, other provisions of European Union law do not apply to the Isle of Man.
35. Article 4 of Protocol 3 provides:
The authorities of [the Isle of Man] shall apply the same treatment to all natural and legal persons of the Community.
36. The Social Security (Isle of Man) Order 1977 (SI 1977 No 2150) (as amended) (“the Isle of Man Order”) made under s.143 of the Social Security Act 1975 makes provision for modification and adaptation of the social security legislation to co-ordinate social security provision between the Isle of Man and the United Kingdom.
37. Paragraph 2(1) of the Schedule to the Order provides:
Subject to paragraph (5) of this Article, for the purposes of all or any of the provisions of the system of social security established by the Acts–
(a) acts, omissions and events and in particular residence, presence, employment (including employment as a mariner or airman), the occurrence of an industrial accident or the development of any prescribed disease, the payment, crediting or treating as paid of contributions (including graduated contributions and payments in lieu of graduated contribution), the refund of contributions paid in excess of the annual maximum amounts payable and the claiming or repayment of benefit; and
(b) the operation of any provisions as to exception from liability to pay contributions,
having effect for all or any of those purposes in one territory shall have corresponding effect for all or any of those purposes in the other territory.
38. Paragraph (5) concerns mobility allowance and has no relevance to the issues before me in this appeal.
G. Is the claimant a beneficiary of European Union law?
39. The claimant is a national of the United Kingdom. As such, he is by virtue of Article 20 TFEU and its predecessor, Article 17 EC, a citizen of the European Union entitled to the constitutional rights which flow from Articles 18 to 22 TFEU.
40. However, citizenship of the Union does not, of itself, obviate the need for a claimant to meet conditions which may be imposed by national legislation. What it does enable him to do is to use European Union law to challenge national requirements which are incompatible with European Union law.
H. How should regulation 10(b) be interpreted in the light of the judgment of the Court of Justice in the Stewart case?
41. One consequence of the judgment of the Court of Justice in the Stewart case, Judgment of 21 July 2011, is that a claimant cannot be denied entitlement to a Category D retirement pension solely on the grounds that the claimant was not resident in Great Britain on the date of his claim.
42. However, as the Secretary of State rightly points out, that does not relieve a claimant who is resident in another Member State from showing that he or she has a genuine and sufficient connection with the Member State in which the claim is made.
43. But was the claimant here resident in another Member State when he made his claim on 27 February 2009 for a Category D retirement pension?
44. Answering this question requires an analysis of paragraphs 2 and 3 of the Gibraltar Order. I have not found these paragraphs at all easy to unravel. I am assisted by the observations of the Commissioner in R(IS) 8/06 who said:
17. … . There is no general provision to the effect that residence on a British registered boat is to be treated as residence in Great Britain when the boat is not in British waters and, in particular, there is nothing in the Merchant Shipping Act 1995 to that effect. The Social Security (Mariners Benefits) Regulations 1975 (SI 1975/529) have no application to the present case. Nor is there any provision to the effect that residence in a British colony is to be treated as residence in Great Britain. Even residence in Northern Ireland is treated as residence in Great Britain for social security purposes only because there is specific provision to that effect in paragraph 2(1) of Schedule 1 to the Social Security (Northern Ireland Reciprocal Arrangements) Regulations 1976 (SI 1976/1003).
18. In respect of Gibraltar there is limited provision to a similar effect in paragraph 3 of the Schedule to the Family Allowances, National Insurance and Industrial Injuries (Gibraltar) Order 1974 (SI 1974/555) but that applies only where the person is “not subject to paragraph 2”. Paragraph 2(a) provides:
“Any person shall have the same rights and liabilities in relation to social security other than family allowances, as he would have had if the United Kingdom and Gibraltar had been separate Member States of the European Economic Community.”
The words “not subject to paragraph 2” in paragraph 3 must therefore be taken to mean “not within the scope of legislation of the European Economic Community relating to social security”, so that paragraph 3 applies only to persons outside the scope of Regulation (EEC) 1408/71, just as, say, the Family Allowances, National Insurance and Industrial Injuries (Spain) Order 1975 (SI 1975/415) does by virtue of Article 6 of Regulation (EEC) 1408/71 which provides that the Regulation replaces any social security convention between Member States. The claimant is within the scope of Regulation (EEC) 1408/71 because he is a citizen of the United Kingdom and is a retired worker. Therefore his residence in Gibraltar does not count as residence in Great Britain as a matter of domestic law except when provisions of Regulation (EEC) 1408/71 would have that effect. I shall consider those provisions below.
45. I would add one rider to the proposition in the penultimate sentence of paragraph 18 cited above, which I would amend to read:
Therefore his residence in Gibraltar does not count as residence in Great Britain as a matter of domestic law except when provisions of Regulation (EEC) 1408/71, or some other binding rule of European Union law, would have that effect
46. The proposition expressed in R(IS) 8/06 now needs to be qualified by the effect of the principles set out by the Court of Justice in the Stewart case. In that case, the Court of Justice ruled that Article 21(1) TFEU precludes a Member State from making the award of a benefit subject to a condition of past presence to the exclusion of any other element enabling the existence of a genuine connection between the claimant and the Member State in which the claim is made to be determined, or to a condition of presence of the claimant on the date on which the claim is made.
47. I conclude that paragraph 2 of the Gibraltar Order applies at this stage. I accept, following R(IS) 8/06, that the words "not subject to paragraph 2" mean not being within the scope of European Union law on social security. The claimant is plainly within the personal scope of Regulation 1408/71, and retirement pensions are within the material scope of the Regulation as old-age pensions. That brings the claimant within the scope of paragraph 2. The effect is that the claimant is then entitled to have Gibraltar treated as if it were in another Member State.
48. That still does not obviate the need for the claimant to show a genuine and sufficient connection with Great Britain in order for his claim to be accepted by the United Kingdom authorities.
Can the claimant show a genuine and sufficient connection with Great Britain as at the date of his claim?
49. The claimant describes his connections with Great Britain as follows:
My father, uncle, two cousins volunteered for military service. Two cousins were killed and my uncle seriously wounded and as a result of a minor accident died of his war wounds—at an early age.
My father served till after the war ended and was honourably discharged in December 1918.
WORLD WAR II 1939-1945
Several of my first cousins and some distant cousins volunteered for military service (from Eire). Two lost their lives and one was awarded the Victoria Cross. My father worked in UK for a short period on war work.
MY CONNECTION WITH THE UNITED KINGDOM
1. Born in Ireland 1928 a UK national.
2. Lived and worked in UK 1948 – 31st July 1950
3. Appointed to HM Colonial Service later renamed HM Overseas Civil Service. These services were under control of the Colonial Secretary who was responsible for our appointment, terms of service, promotion, discipline.
4. As UK Crown Servants working in Kenya we were required to sign the Official Secrets Act conditions on a life long basis (a normal condition) giving me a life long connection with the United Kingdom.
5. During my Kenya service I spent three years in the Mau Mau conflict zone—like other front line fighters I was awarded the Africa General Service medal bearing HM the Queen’s image thus another link with the United Kingdom.
6. My work in Kenya was recognised by HM the Queen in her Birthday Honours Awards another UK connection or link.
7. I have been a UK National for 84 years another link with the United Kingdom.
8. I have had a UK passport for 62 years which gives me a right of residence in the UK—another link.
9. I receive a contributory Old Age Pension of £31.95 per week giving me a link (as in the case of Ms Stewart) with the Social Security System.
10. I receive the annual Christmas bonus of £10—another UK link.
50. I am content to accept as correct the factual basis of all the connections to which the claimant makes reference for the purposes of determining whether he can show a genuine and sufficient connection with Great Britain in order to ground his claim for a Category D retirement pension.
51. Determining whether there is a genuine and sufficient connection with Great Britain as at the date of the claim is a question of fact to be determined in the light of all the circumstances. In this case, this involves a weighing of the relevant factors which show some connection against those which show no connection.
52. The following are factors which show a connection with Great Britain as at the date of claim:
The claimant is a British national who holds a British passport.
The claimant has lived in the United Kingdom between (a) December 1948 and July 1950, and (b) November 1963 and October 1964. He made a number of three month visits to the United Kingdom when on leave from the Kenyan Police Force.
Much of his employment history has a connection with the United Kingdom, through the colonial service or the overseas civil service, in connection with which he was required to sign the Official Secrets Act.
The claimant is in receipt of a United Kingdom contributory pension (based upon Class I contributions during his employment in 1949 and 1950 and Class 3 contributions paid on the basis of his employment in Ireland between 1984 and 1994) and of the annual Christmas bonus.
53. The following are factors which show no connection with Great Britain as at the date of claim:
The claimant has actually lived in Great Britain only for two relatively short periods. He last lived in the Great Britain in 1964.
The claimant appears to have no current family connections in the United Kingdom. In his comprehensive list of connections with the United Kingdom, he certainly mentions none.
The claimant has lived in Gibraltar since 2 June 2003, having previously lived in the Isle of Man between May 1998 and June 2003.
54. Balancing the positive and negative factors, I conclude that the claimant did show a genuine and sufficient connection with Great Britain when he made his claim for a Category D retirement pension on 27 February 2009. He is accordingly eligible to make a claim for a Category D retirement pension.
55. I regard as the decisive factor that he is in receipt of a Category A retirement pension and is as a consequence entitled to the annual Christmas bonus. His Category A retirement pension is uprated annually in accordance with the usual practice. He accordingly has a continuing connection with the Great Britain social security system in relation to his retirement pension.
56. Although receipt of a Category A retirement pension is normally a disqualifying condition under section 78 of the Social Security Contributions and Benefits Act 1992 in relation to a Category D retirement pension, there is an exception where the amount of the Category A retirement pension is less than the amount of the Category D retirement pension. That is the case here. This link between the Category A retirement pension and a Category D retirement pension has reinforced my conclusion that the claimant shows a genuine and sufficient connection with Great Britain for him to be able to claim a Category D retirement pension.
57. I need to add (in the light of my decision in the linked appeal relating to winter fuel payments: CIS/1015/2011) that I consider that the genuine and sufficient connection test following the judgment in the Stewart case must be applied taking account of the particular benefit being claimed. The test is one of a genuine and sufficient connection with Great Britain for the purposes of the benefit being claimed. So it is possible to show a genuine and sufficient connection for one benefit but not for another in the light of the same background.
58. The particular feature in relation to the claim before me in this appeal is the relationship, in the circumstances of this case, between the Category A retirement pension in payment and the Category D retirement pension, which effectively operates as a top up for those aged 80 or over whose Category A retirement pension is paid at a level below that of the Category D retirement pension.
I. If regulation 10(b) provides no bar to the claim, can the claimant show residence treated as residence in Great Britain for the requisite period as required by regulation 10(a)?
59. In so far as it is relevant, Regulation 1408/71 applies to this case, since the date of the decision was 8 April 2010. Regulation 883/2004 which replaced Regulation 1408/71 entered into force on 1 May 2010. The claimant is plainly within the personal scope of Regulation 1408/71 as a person who had been insured in at least two Member States and had retired from work. Retirement pensions are within the material scope of the Regulation as old-age benefits.
60. For the reasons set out in the Secretary of State’s submission to me dated 28 June 2012, there is no objection to the requirement for completion of periods of residence in order to acquire an entitlement to a non-contributory pension. I would summarise those reasons as follows.
61. Article 10 of Regulation 1408/71, which is made subject to other provisions of the Regulation, precludes a Member State from making residence a condition of continuing to receive a listed type of benefit, entitlement to which has already been acquired, on moving to another Member State.
62. In relation to old-age benefits, Articles 44 to 51 clearly indicate that it is permissible to make entitlement to old-age benefits conditional on the completion of periods of insurance or residence. Co-ordination is achieved under these provisions by requiring periods of insurance or residence in other Member States to be taken into account in determining whether an overall period of insurance or residence is satisfied.
63. However, the principle of aggregation does not apply to old-age benefits in the form of pensions in quite the same way as it applies in the case of certain other benefits, since pensions are paid by each Member State where the claimant has been insured or has completed periods of residence on a pro rata basis. Aggregation of periods of residence or insurance merely enables a total period of insurance or residence to be achieved, and avoids fragmentation of periods of insurance or residence adversely affecting a worker. The outcome is that a person who has been insured or resident in a number of Member States is likely to end up with a portfolio of pensions from more than one Member State.
64. There are two periods of residence in issue: (a) residence in Gibraltar from 2 June 2003 to the date of claim; and (b) earlier residence in the Isle of Man until the claimant move to Gibraltar.
Can residence in Gibraltar be treated as residence in Great Britain?
65. It would seem to me that whether paragraph 2 or paragraph 3 of the Gibraltar Order applies to the claimant, the outcome is that his residence in Gibraltar is treated as residence in Great Britain for the purposes of a claim to a Category D retirement pension.
66. If European Union law rules apply, then the provisions of Regulation 1408/71 provide that, in relation to old age benefits, periods of residence in Gibraltar may be used to achieve a total qualifying period leading to a retirement pension required under the national legislation, since Gibraltar is to be treated as if it were a separate Member State of the European Union. My view is that paragraph 2 applies to the claimant.
67. If European Union rules do not apply, then paragraph 3 provides that residence in Gibraltar is to be treated as residence in Great Britain.
68. That gives the claimant a period of residence to be taken into account under regulation 10(a) of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979 in the relevant period from 29 May 1998 to 1 June 2003.
69. I should add that I do not agree with the Secretary of State’s proposition that the claimant would need to show that his residence in Gibraltar was residence which would potentially lead to a benefit identical to that claimed in the United Kingdom. To introduce such a requirement would be moving towards harmonisation, whereas Regulation 1408/71 is about co-ordination: that is, making different social security systems work together.
Can residence in the Isle of Man be treated as residence in Great Britain?
70. As the Secretary of State rightly points out, the Isle of Man Order is a reciprocal agreement between the authorities in Great Britain and the authorities in the Isle of Man.
71. I agree with the Secretary of State that a person who has no period of residence in Great Britain in the relevant period cannot rely on the Order in order to have a period of residence in the Isle of Man treated as a period of residence in Great Britain.
72. However, in this case, the operation of the Gibraltar Order means that a period of residence in Gibraltar is treated as a period of residence in Great Britain. This provides the necessary connection with Great Britain for the Isle of Man Order to apply.
73. Paragraph 2 of the Isle of Man Order is drafted in broad terms and makes particular reference to residence. I do not see that deemed residence in Great Britain is excluded. If that is right (which, in my view, it is), then the claimant’s residence in the Isle of Man has the effect under the Order of being deemed to be residence in Great Britain.
74. That gives the claimant a period of residence to be taken into account under regulation 10(a) of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979 in the relevant period from 2 June 2003 to 27 February 2009.
75. When this period is added to the period of deemed residence in Great Britain arising from his actual residence in Gibraltar, the ten year qualifying period of residence in Great Britain in order to qualify for a Category D retirement pension is satisfied.
76. I note that the Secretary of State argues that there is a risk of absurd results if such an approach is taken, but his enunciation of those absurd results is predicated on a case in which a person has no period of residence in Great Britain, and where there has been no movement between Great Britain and the Isle of Man. But since there is in this case, in my view, a deemed period of residence in Great Britain and an actual period of residence in the Isle of Man, it would seem that there is no absurdity of result.
77. The outcome is that the claimant is entitled to a Category D retirement pension on his claim made on 27 February 2009 since:
he can establish deemed residence in Great Britain for a period of at least 10 years in any continuous period of 20 years which included the day before that on which he attained the age of 80 or any day thereafter;
the amount of his Category A retirement pension is less than the rate of the Category D retirement pension.
78. My formal decision in substitution for that of the tribunal is set out at the head of this decision. The Secretary of State will now determine the amount of the pension payable, and the arrears due to the claimant.
Signed on the original Robin C A White
on 26 June 2013 Judge of the Upper Tribunal