In David George Head v Social Security Commissioner & DWP the High Court held that the future right to a state pension was not a “possession” that was protected by the European Convention on Human Rights (the Convention).
In this case the Social Security Commissioner and Appeal Tribunal had refused to allow the claimant to appeal against the Department for Work and Pensions’ (DWP) calculation of his state second pension. The claimant sought to challenge the Commissioner’s decision to deny his appeal. The essence of the claimant’s argument was that the DWP’s calculation contravened Article 1 of Protocol 1 to the Convention (the right to peaceful enjoyment of his possession) or discriminated against him in a way that infringed Article 14 (prohibition against discrimination).
Nicol J in the High Court commented that a higher court would only review an earlier tribunal/court’s decision not to grant appeal in very limited circumstances. He held that the facts in the present case did not justify the court reviewing the Commissioner’s decision.
Nicol J also rejected the claimant’s arguments that he had been deprived of a “possession” within the meaning of the Convention. Nicol J was persuaded that the DWP’s calculation prevented the claimant from receiving a larger pension rather than deprive him of a pension (i.e. the claimant was not in “possession” of these benefits and therefore could not be deprived of them). There was not a strong enough link between the claimant’s contributions and his state pension for him to have established a future right to a particular pension. Nicol J appeared to agree with the House of Lord’s decision in Carson that the position could be contrasted with contributions made to a private pension.
The High Court also refused to grant the appeal on the basis of Article 14 because the claimant had not gone through the correct procedure to invoke this article. Nicol J commented that even if the correct procedure had been followed the claimant would have been unlikely to succeed on this argument.