[2025] UKUT 353 (AAC)

the only express and substantive set of reasons the tribunal gives for the decision is what is said in paragraph 9. That paragraph is wholly dependent on the conclusion derived from KH, so if that decision is irrelevant the whole of the tribunal’s decision cannot stand;

in KH there was no dispute as the correctness of the calculation of pension made at the end of the single period of deferment. That is why it is irrelevant;

if the appellant had not originally deferred his pension, he would have been entitled by April 2022 to a weekly rate of pension of £297.36, representing the rate of pension he would have been paid if his entitlement had not been deferred. The pension he had forgone would have been £15,953. On claiming his pension for the second time he would have been entitled to a pension at that rate together with 60p for each of 55 increment periods;

he has in fact forgone during his period of de-retirement pension payments amounting to £15,953. The weekly reduction in increments of £7.01 is approximately 21% of the increment total. As a percentage of the pension forgone it represents a capital sum of £3,388. Most reasonable people would regard such a reduction as unfair and therefore likely to be contrary to the legislative intent in the absence of an overriding policy objective, which the appellant has not found;

if he had exercised the lump sum option when he first retired, he would have received a lump sum of £38,915.04. If when he made his second claim he had chosen increments rather than a lump sum, then adopting the Secretary of State’s approach he would have been entitled to the weekly sum of £323.35, as the Secretary of State has determined, but he would also have the lump sum. That would be anomalous, but there is no basis in such circumstances for the Secretary of State to limit the calculation of increments to the 55 weeks of de-retirement;

the Secretary of State’s approach removes the permanent increase to which he had already become entitled as a result of his first claim, which constitutes a retrospective removal of a vested right and is inconsistent with some of the statements in KH;

the words in s.55(3) that entitlement “is deferred if and so long as” the person in question falls to be treated as not having become entitled to the pension should be construed as a cross-reference to reg. 3 of the 1979 Regulations providing that no pension shall be payable for any period on or after the date of the election to de-retire. The most reasonable interpretation is that those specific words were intended to be a more detailed and clear version of the words in s.54(1) and a similar interpretation should be given to s.55(3). Before making the election, the pensioner was not in fact deferring the pension;

the explanatory notes to the Pensions Act 2004 would have been an obvious place to explain the effect of the cancellation provisions in s.54 if they were understood as the Secretary of State now contends, especially given the obscure and counter-intuitive construction which the Secretary of State now seeks to give those provisions;

the Pensions Act 2014 is a useful guide to interpretation of the relevant provisions and does not provide for the approach now being put forward by the Secretary of State. There is no indication that the provisions were intended to operate differently, so it is reasonable to conclude that the Secretary of State cannot apply its method under the 1992 Act any more than under the 2014 Act.