[2024] UKUT 10 (AAC)

It is unfortunate that the President in granting permission to appeal, did not explain why she considered that it was Article 56 which applied rather than Article 52 nor how it would affect the outcome of the analysis to apply one provision rather than the other.

There is in fact no conflict between Article 52 and Article 56 which apply to two different situations.

Article 52 applies, in order to prevent duplication of benefits for the same injury, to give the Secretary of state power to take into account against any pension or gratuity “in such manner and to such extent as [he] thinks fit” any compensation (as defined in Article 52(3)) which has been or will be paid to a war pension beneficiary so as to extinguish or reduce the war pension benefits which would otherwise be payable. By contrast, Article 56 provides that where an award of a war pension is made for any past period during which social security benefits (i.e. contributory benefits, non-contributory benefits, increases for dependants, industrial injuries benefits, income-related benefits, jobseeker’s allowance and employment and support allowance in Great Britain and Norther Ireland) have been paid, the amount of the pension may be abated by the amount by which the total of benefit paid during the period exceeds the amount which would have been paid if the social security benefit and the war pension had both been paid at the same time.

I therefore agree with the Secretary of State’s submission that, whilst UC falls within the scope of Article 56(3), Article 56 is however directed at a separate, distinct context and that it bites “where a pension is awarded for any past period”. The decision which is the subject of the appeal in this case relates to a decision as to abatement of pension payments going forward. In those circumstances, for the reasons set out above, it is Article 52 which provides the correct vehicle for abatement of UnSupp payments.

It follows from this that the reliance on the CPAG decision does not assist the claimant. The situation is not one where a common law remedy was said to exist alongside the statutory regime or whether a common law remedy would be incompatible with the statutory scheme and could not therefore have been intended to co-exist with it. By contrast, this is a case where the statutory regime provides two different provisions for abatement, but they do not overlap because they deal with different situations and there is no room for any recipe for chaos as there potentially was in CPAG.