Garden Court barristers represent a Benedictine nun in the Court of Appeal

Monday 24 January 2011

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Stephen Knafler QC and Desmond Rutledge represented a Benedictine nun in a test case in the Court of Appeal on 21 January 2011 in Scott v Secretary of State for Work and Pensions (CI2010/1117), about the eligibility of nuns for State Pension Credit ('SPC') (a means-tested benefit for those over pensionable age). They obtained permission to appeal a decision of a tribunal of the Upper Tribunal Judges ([2009] UKUT 200 (AAC)), chaired by Mr Justice Walker (which is quite rare), who had disallowed the nun's claim for basic SPC.

The Court of Appeal dismissed the appeal, however, holding ultimately that if a nun's maintenance was ostensibly provided by her religious order, through a charitable trust mechanism, then she was excluded from SPC, as "a member of a religious order who was fully maintained by her order" (SPC Regulations 2002, reg 6(2)(b)). The Court said it was not permissible to look behind the trust arrangements at the substantive reality of the situation and decide that, where the reality was that one or two nuns were simply supporting themselves, by their own efforts, (e.g. by running a nursing home or a play group) that the trust mechanism did not change that. The Court further said that where the nuns were unable to stop work or work less hard within those enterprises, due to their age and increasing frailty, because the trust had no independent funds to maintain them, it was open to a decision-maker to decide that the nuns were not in fact fully maintained by their order. They when on to say that while the nun in the instant appeal was unable to claim SPC so long as she continued to work, it indicated that if she did have to stop work in the future, i.e. due to her inability to continue to work the same hours and as a consequence, was in fact no longer maintained by her order, then SPC should be paid. The SPC would then cover the nun's basic living expenses. However, it may then be open to the nun in question to contribute part of her SPC to her order, if she wished.

Stephen Knafler QC and Desmond Rutledge are both members of the Garden Court Welfare Benefits Team. They are also both editors of the Garden Court Social Welfare Law website.

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