Bryan v City & Council of Swansea [2010] EWCA Civ 634

Case No C5/2009/2014[2010] EWCA Civ 634
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL ADMINISTRATIVE CHAMBER
(JUDGE BANO)
(LOWER COURT No: CH/2023/2008)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 22 nd April 2010
Before
LADY JUSTICE ARDEN
Between
BRYANAppellantCITY & COUNCIL OF SWANSEARespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person for in person for The Respondent did not appear and was not represented
Judgment
[1]This is an application for permission to appeal from the judgment of Judge Bano, dated 1st April 2009, sitting in the Upper Tribunal of the Administrative Appeals Tribunal. By his order he dismissed application CH/2023/2008 and he refused permission to appeal in CPC/3701/2008.[2]This court has no jurisdiction to deal with an appeal against a refusal of permission to appeal (see section 13(8) of the Tribunal Courts and Enforcement Act 2007), so this application can only be about matter CH/2003/2008 which dealt with council tax benefit and is not concerned with the state pension credit application because this court has no jurisdiction.[3]There is a further limitation. When an appeal is sought to be made from the Upper Tribunal to this court it must be shown that the proposed appeal would raise some important point of principle or practice or that there is some other compelling reason for this court to hear the appeal.[4]The point in this case really comes to this. For the purposes of assessing council tax benefit, the Secretary of State had to provide details of capital and income belonging to Mrs Bryan (the appellant) to the Swansea City Council, and they did so. Mrs Bryan points out that it postulated a figure for capital to which she is not entitled and that it was inaccurate. But it appears from the judge's judgment that the only relevant figure was in relation to income.[5]Mrs Bryan submits that the figure for income was wrong and I will explain why in a little bit more detail. But the position on this is that it is not open to Swansea to refuse to accept the Secretary of State's figure about this. One needs to go to Regulation 17 of Council Tax Benefits (Persons who have attained the qualifying age for State Pension Credit) Regulations 2006. Regulation 17 says that:
"In determining the income and capital of a claimant who has, or whose partner has, an award of state pension credit comprising only the savings credit, the relevant authority shall, subject to the following provisions of this regulation, use the calculation or estimate of the claimant’s or, as the case may be, the claimant’s partner’s income and capital made by the Secretary of State for the purpose of determining that award.."
[6]So the relevant authority, which is Swansea, has to use the figure provided by the Secretary of State; and then the regulation provides for that figure to be given. It gives only a limited power to the authority to modify that amount and those permissions are in sub-regulation (3), which do not take the matter any further.[7]What Mrs Bryan submits is this. So far as her income is concerned, she says it was incorrectly assessed. That is a matter for the Secretary of State for Work & Pensions, but what she is saying is fundamentally this: her entitlement to the pension is her inalienable right conferred by Article 1 of the First Protocol to the Convention on Human Rights. That is also confirmed by section 187 of the Social Security Administration Act 1998, which says that the pension may not be "assigned or charged", so she says it is not open to the Secretary of State to use it in the permission of information to Swansea so as to diminish her council tax credit.[8]The position, as I see it, is that under Article 1 of the First Protocol she has to show that there has been some deprivation of pension. She confirms that she was still receiving the pension. All that has happened is that the figure for her pension is taken into account in calculating some other benefit and no doubt in reducing the amount. The actual pension is unaffected, and it is only the deprivation of the benefits of the pension which could come within Article 1 of the First Protocol.[9]As regards section 187, that is talking about an assignment or charge. That would involve somebody else getting an interest in Mrs Bryan's pension. That has clearly not happened, so that that argument does not stand any prospect of success either.[10]Mrs Bryan has referred me to the case of Vasilopoulou v Greece (2002), which is summarised in her papers. The position in that case is that the court made an award of supplementary widow's pension, but then the Greek government refused to honour the court's award and, not surprisingly, the court said that that was a violation of the rights of the person to whom the benefit had been awarded, but that is not this case because there had been an award by the court and it is not suggested that any award by the court has been made but not honoured.[11]In those circumstances, I have reached the view that this appeal does not meet the conditions of an appeal to this court. There is no prospect of success and it does not raise an important point of falling within section 13 of the 2007 Act.[12]I must therefore dismiss the application, but I will extend time.

Order

Application refused