Secretary of State for Work and Pensions v AJ

This is an appeal by the Secretary of State (hereafter “SSWP”) against the decision by the First-tier Tribunal (“FtT”) about the Respondent claimant’s retirement pension. Permission to appeal was given by Upper Tribunal Judge Wright. The case was initially stayed behind what became SSWP v DS [2025] UKUT 158 (AAC).

The claimant reached state pensionable age on 10 December 2022 when he turned 66. On 14 April 2023 he claimed his state pension.

The rubric to Part 2 of the claim form states:

“Part 2: When to claim your State Pension

The earliest you can get your State Pension is the date you reach State Pension age. Find your State Pension age at www.gov.uk/state-pension-age

You can choose to get your State Pension from a later date.

If your State Pension age is more than 12 months in the past, it is not always possible to claim from State Pension age. You can find information about deferring your State Pension at www.gov.uk/deferring-state-pension .”

Question 7 asks “Do you want to get your State Pension from the earliest date?

The claimant ticked the box for “No”.

Question 8 asks “If no, when do you want to get your State Pension from?”

The claimant answered “17/04/2023 please”.

It is not in dispute that the claimant’s intention was to claim from the date he reached pensionable age, but only to be paid the state pension in the tax year 2023/24 because he thought that would lead to a more advantageous tax position for him. It is the claimant’s case that he completed the form in the way he did on advice from the DWP.

SSWP decided on 18 April 2023 that the claimant was entitled to state pension from 17 April 2023. It calculated the amount taking into account the period of deferral from 10 December 2022.

On 21 April 2023 the claimant contacted the DWP to query the date from which his state pension was payable. Following that and the subsequent mandatory reconsideration the decision remained unchanged.

The FtT on appeal decided that the claimant was entitled to backdated state pension for the period 10 December 2022 to 13 April 2023 but would lose the amount which had ben paid to him in respect of deferral.

The effect of Social Security (Claims and Payments) Regulations 1987 (“the C&P Regulations”), reg.19(1) and schedule 4, entry 13, is that a claim may be made on reaching pensionable age or by making a backdated claim within 12 months thereafter.

Section 16 of the Pensions Act 2014 allows a person who has become entitled to a state pension to suspend his or her entitlement. If a claimant elects to suspend their entitlement to a state pension, they are eligible for it to be enhanced by increments in accordance with s.17.

Regulations 7 to 9 of the State Pension Regulations 2014 give further details about suspension. In particular for present purposes, reg.9 who has opted for their state pension to be suspended may cancel the suspension and may do so retrospectively for up to 12 months before the date on which they cancel the suspension.

Social Security Administration Act 1992 (“the 1992 Act”) provides:

“(1)

Except in such cases as may be prescribed, and subject to the following provisions of this section and to section below, no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied—

(a)

he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or

By Social Security Act 1998 (“the 1998 Act”) s.8(2):

“Where at any time a claim for a relevant benefit is decided by the Secretary of State—

Reg 5 of the C&P Regulations provides:

“(1)

A person who has made a claim for benefit may amend it at any time before a determination has been made on the claim by notice in writing received at an appropriate office, by telephone call to a telephone number specified by the Secretary of State or in such other manner as the Secretary of State may decide or accept.”

The FtT held that the word “get” in question 8 on the form could equally reasonably be read as meaning “be entitled to” or “receive payment”. It accepted that the claimant did not say on the form that he wanted backdating (though he would have been eligible for it, had he done so). Although the judge was at pains to make clear that it was no criticism of the DWP that they treated the claim as running from the date it was made, qualified by the answer to question 8, “their swiftness in doing so is at odds with the possibility that a person may legitimately claim late – unless some reasonable flexibility is built in once the truth is known.” The judge noted there did not appear to be anything which required a backdating request to be made at the time of the actual claim. The judge did not base his decision on any suggestion that the claimant’s previous enquiries of the DWP should have been taken as qualifying the claim he made, but observed that even if it was procedurally correct for the DWP to deal with his claim they did on 14 April 2023, the DWP should have realised from the request for mandatory reconsideration and the appeal that the claimant wished to revise that position. While reg 5(2) could not be relied upon once the claim had been decided, instead the claimant “may have his original entitlement decision revised so as to correctly look at it as a late claim”. What the judge had in mind was an “any grounds” revision under reg.3(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1987.

SSWP’s original grounds in summary were:

The claimant submits:

He then goes on to make a number of points about his motivation and his perception of the unfairness of the situation. I intend no disrespect to those points by noting that they do not bear on the question of law which the Upper Tribunal has to decide.

SSWP’s appeal was accepted as not being out of time by Judge Wright in para 1 of his ruling of 9 January 2025.

There is no dispute that it was not the claimant’s intention to surrender any backdated pension entitlement. The question however is what was shown by his completed claim form.

I agree with SSWP’s original grounds of appeal that the FtT’s construction of the form was (a) equivocal and (b) to the extent that it admitted of a construction equating “get” to meaning “receive payment” (i.e.while being entitled) rather than “be entitled” it cannot be sustained.

The claim form, completed as it was, admitted of only one reading and SSWP was entitled to take the decision on the basis of it as it stood. Once the claim had been decided upon, it was at an end.

If the claim form as completed by the claimant it did not reflect his intention, that is regrettable but SSWP was under no obligation to probe the matter further.

If the form was completed as it was on the strength of advice given by DWP officials, that is something which would have to be pursued (if at all) as a complaint through the DWP’s procedures. It is not something over which the FtT (or on appeal, the Upper Tribunal) has any jurisdiction.

Contrary to the claimant’s position, SSWP v DS is equally applicable to the present case. In fact, that case concerned a mistake rather than a change of heart as the claimant suggests. But that is not the key point. The key point is that it explains the operation of (in particular) s.8 of the 1998 Act and reg.5 of the 1987 Regulations in the context of claims for state pension where the two alternatives noted above, of making a backdated claim or suspending entitlement, exist.

For completeness, I also agree with the SSWP’s original grounds that the FtT was limited to considering the original decision (as not revised) and that revision in any event would not provide a vehicle for changing the date of claim.

Consequently, SSWP’s appeal is allowed. The FtT ought to have dismissed the claimant’s appeal against SSWP’s decision of 18 April 2023. That decision accordingly now stands.