Social security

Pension - married person's right to claim benefit on other spouse's contribution - no right to backdate change more than three months - department not under duty to advise

Secretary of State for Work and Pensions v Nelligen: CA: (Lords Justice Kennedy and Scott Baker, and Mr Justice Blackburne): 15 April 2003

The defendant was a 60-year-old married woman in 1986 when she claimed and received category A pension based on her own national insurance contribution.

In 1992 when her husband retired at the age of 65, although she could have chosen to claim category B pension based on her husband's contribution, she continued to claim category A pension.

In March 2000, realising that category B pension was more advantageous to her than category A, she changed to category B.

The Department for Work and Pensions rejected her complaint that it had failed to advise her on her choice in 1992 and backdated the category B pension to 2 December 1999.

The local appeal tribunal dismissed her appeal.

The Social Security Commissioner allowed her appeal and backdated the payments to 1992.

The secretary of state appealed.

David Forsdick (instructed by Solicitor of the Department for Work and Pensions) for the secretary; the defendant did not appear and was not represented.

Held, allowing the appeal, that section 43(5) of the Social Security Contribution and Benefits Act 1992 provided a mechanism for choosing between different pensions to which there was entitlement; that until the defendant had given notice of her choice to the department, it could not effect payment of pension of her choice; and that the intention of the 1992 Act was not to impose any obligation on the department to backdate the payment to the date of her husband's retirement or to advise her as to which category of pension to choose.