[2024] UKUT 10 (AAC)

Article 12(10) of the SPO 2006 provides that

“Where—

(a)

a person to whom a personal allowance may be or has been awarded under the foregoing provisions of this article is eligible for—

(i)

a category A or B retirement pension, as provided for by regulation 18 of the Social Security (Widow's Benefit, Retirement Pensions and Other Benefits) Transitional Regulations 1979, or by corresponding regulations made in Northern Ireland, or

(ii)

a widow's pension under Part II of the Social Security Contributions and Benefits Act 1992, or the corresponding provisions of the Social Security (Northern Ireland) Contributions and Benefits Act 1992; or

(iii)

a state pension under Part 1 of the Pensions Act 2014; or

(b)

a person to or in respect of whom a personal allowance or an additional allowance may be or has been so awarded is eligible for benefit payable out of public funds under the law of any place outside the United Kingdom being benefit which, in the opinion of the Secretary of State, is analogous to benefit under Chapters I or II of Part II of the Social Security Act 1975

the Secretary of State may take into account any pension referred to in subparagraph (a) against the personal allowance and any benefit referred to in subparagraph (b) against the personal allowance and the additional allowance in such manner and to such extent as he may think appropriate having regard, in the case of such benefit, to any adjustment which would be made if the person were eligible for the analogous benefit under Chapters I or II of Part II of the Social Security Act 1975”.

Sub-paragraph (a) is obviously inapplicable to the present situation. The Tribunal sought to rely on Article 12(10(b), but that provision is equally obviously inapplicable because it only applies where a claimant “is eligible for benefit payable out of public funds under the law of any place outside the United Kingdom”. The claimant in this case, however, was not eligible for payment of benefit out of public funds under the law of any place outside the UK. The question of whether the UK benefit which he was being paid was or was not analogous to benefit under Chapters I or II of Part II of the Social Security Act 1975 did not therefore arise. To the extent that the Tribunal relied on the terms of Article 12(10)(b) its decision was erroneous and the Secretary of State rightly did not seek to uphold its decision on that basis. (I should add that it was never part of the Secretary of State’s case before the Tribunal that Article 12(10)(b) applied to the case in any event.)