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Neutral Citation Number:
Reported Number: R(IB)3/05
File Number: CIB 65 2004
Appellant:
Respondent:
Judge/Commissioner: Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision: 23/11/2004
Date Added: 14/12/2004
Main Category: Incapacity benefits
Main Subcategory: other
Secondary Category:
Secondary Subcategory:
Notes: Incapacity benefit - reduction for occupational pension - meaning of "pension payment ... payable" - whether amount of pension gross or net of income tax to be used in calculation The claimant received incapacity benefit and an occupational pension. Section 30DD of the Social Security Contributions and Benefits Act 1992 provides that, where the amount of occupational pension "payable" to a claimant exceeds a threshold, his or her incapacity benefit is to be reduced by half the excess amount but does not specify whether the amount of pension to be taken is the amount gross or net of tax. In calculating the reduction of occupational pension in the claimant's case, the decision-maker used the gross weekly amount of pension. The claimant's appeal to a tribunal was unsuccessful. On appeal to the Commissioner, he argued that the amount of pension net of tax should have been used in calculating the reduction. The Secretary of State argued that on the literal construction of section 30DD the reference to "a pension payment payable" was to the gross amount. Held, dismissing the appeal, that: 1. on a literal construction of section 30DD both meanings contended for were possible and it was therefore necessary to decide which of the two possible meanings Parliament intended (paragraph 23); 2. no assistance could be derived from considerations of "symmetry" between the tax treatment of the pension and that of the incapacity benefit, since the tax treatment was different for the different rates of incapacity benefit (paragraphs 23 to 25); 3. an examination of the legislative context of Section 30DD was equally unhelpful, since there was no uniform practice of taking payments of pension or other income as either gross or net (paragraphs 37 and 38); 4. the most reliable guide to the meaning of Section 30DD was R(U) 8/83, of which Parliament must be taken to have been aware when it enacted section 30DD. Although that case dealt with different wording, referring to pension payments which "are made", that difference of wording could not affect the amount of money that is in issue (paragraphs 39 to 41); 5. therefore, following R(U) 8/83, the decision-maker was correct in using the gross amount of pension in calculating the abatement of the claimant's incapacity benefit (paragraph 42).
Decision(s) to Download: R(IB) 3_05 bv.doc R(IB) 3_05 bv.doc