MRS W MACKENZIE v 1) NHS PENSIONS AGENCY 2) SECRETARY OF STATE [2002] UKEAT 1080_01_2002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1080_01_2002Case No Appeal No. EAT/1080/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS W MACKENZIEAPPELLANT1) NHS PENSIONS AGENCY 2) SECRETARY OF STATERESPONDENT
Before
Mr Justice LindsayDate 20 February 2002
[1]APPEARANCES For the Appellant MISS L CHUDLEIGH (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme THE APPELLANT In Person Mr JUSTICE LINDSAY (PRESIDENT) We have before us by way of a Preliminary Hearing the appeal of Mrs W Mackenzie in the matter Mackenzie against, as first Respondent, NHS Pensions Agency and, as the second Respondent, the Secretary of State for Health.[2]We have an undated IT1 with which Mrs Mackenzie started proceedings. In Box 1 which says:
"Please give the type of complaint you want the tribunal to decide"
She says:
"The NHS Pensions Agency refuse to pay me my joint pension (occupational) compulsory deducted from wages for 27 years one month."
And there is some small writing I need not trouble with. The Respondent was described as the NHS Pensions Agency.[3]That was responded to with a Notice of Appearance put in by the NHS Pensions Agency on 2 May 2001. It indicated they did intend to resist the proceedings. With that were the first Respondent's, that is the NHS Pensions Agency's, grounds of resistance and they said in that that the Notice of Appearance was entered without prejudice to the contention that the Applicant's originating application failed to disclose any cause of action against the Respondent other than in relation to matters which had already been adjudicated upon. As background the Notice stated that the current pension scheme made by the Secretary of State under section 10 of the 1972 Act - that is the Superannuation Act 1972 - in respect of NHS and General Practice Employees was known as the NHS Pension Scheme and that its current rules were set out in some regulations of 1995. It continued:
"The Applicant has provided no evidence to indicate that she may be eligible for membership of the NHS Pension Scheme and furthermore the matters the Applicant raises in her claim are res judicata."
The Notice of Appearance continued:
"The Applicant issued proceedings against the Secretary of State in relation to her pension entitlement and the payment of money to Mr Joseph Lester in 1994. A hearing was held on 12 July 1994 where the Industrial tribunal in Leeds found no legislation on which the claim could be based."
And so the NHS Pensions Agency asked that the matter should be struck out.[4]It accordingly came before the Tribunal for decision. It came before Mr D R Sneath (sitting alone) at Leeds on 21 June 2001. Mrs Mackenzie appeared in person and Counsel appeared for the NHS Pensions Agency and the decision was sent to the parties on 26 June and the decision was:
"The decision of the Tribunal is that it has no jurisdiction to consider this complaint and accordingly it is dismissed."
[5]Mr Sneath set out the reasons in extended form. He quoted from the IT1 that I have just referred to and he continues:
"The applicant had presented an originating application to this tribunal, as an industrial tribunal, on 4 February 1994. In that application she pleaded: "
My right to Government occupational pension promised and paid for by Government deducting contributions from salary plus monies held by Government to buy back years." " So he was quoting from the 1994 IT1 and he then explained what became of that 1994 case.[6]In his paragraph 4 he says:
"That application came on before a full tribunal chaired by Mr John Prophet on 12 July 1994. That tribunal unanimously decided that it had no jurisdiction to consider the complaint and dismissed it."
The Extended Reasons add that there had been no appeal to the Employment Appeal Tribunal in relation to that decision of 1994 and no attempt to review it and so that 1994 decision was totally invulnerable. It was to be taken as appropriate and proper.[7]Reverting to what the Chairman said in the Extended Reasons of June 2001, he went on as follows:
"The applicant has agreed today that this complaint (that is to say the new one of January 2001) is the same complaint as that brought before that tribunal in 1994. The only difference claimed by her is that she has new evidence to support her claim."
So the position is that in 2001, as Mr Sneath judged it, Mrs Mackenzie was renewing the very same case which had been dismissed in 1994 and had not been appealed. Not surprisingly, in that circumstance, he found that there was no jurisdiction to consider the complaint and that it was therefore to be dismissed. But we apprehend that the difficulties in Mrs Mackenzie's path go even deeper than that because it is not, of course, every kind of civil dispute that the Employment Appeal Tribunal or indeed the Employment Tribunal can deal with.[8]There is a list in the Employment Tribunals Act of the kinds of error of law with which we here at the Employment Appeal Tribunal can deal. That is section 21 of the 1996 Act and we are bound to say we have difficulty in finding any of the headings A-G under that section 21(1) which could be taken to be a description of the point that Mrs Mackenzie now wishes to raise.[9]We have a good deal of sympathy with Mrs Mackenzie's position in the sense that she has fought valiantly for what she believes to be right and we pay her respect on that score but however much respect we pay on that score we cannot simply allow an issue which was decided in 1994 to be decided afresh without extremely complex circumstances being proved to enable that to happen but which are not proved and which are such that, even if they were proved, the second difficulty that we mentioned, namely that her claim does not seem to fall within our jurisdiction, would in any event arise.[10]Accordingly, this being a Preliminary Hearing, we are to judge whether there is any arguable error of law in the Tribunal's decision. Notwithstanding our respect for Mrs Mackenzie's position, we are quite unable to find any error of law that is arguable and so we dismiss the appeal even at this preliminary stage.