High Court rules that equalising pension ages did not prejudice women

9 October 2019 by Henry Tufnell

Delve & Anor, R (On the Application of) v The Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin) – read judgment

In a judgment handed down on 3^rd October, the High Court has ruled that successive statutes between 1995 and 2014, which legislated to equalise the state pension age between men and women were not discriminatory. The High Court also determined that it was not a matter for the courts to conclude whether the steps taken to inform those affected by the changes in the state pension age for women were inadequate or unreasonable.

Background

The origins of this claim rest in the Old Age and Widows’ Pension Act 1940, where the state pension age for women was lowered from 65 to 60 in response to a campaign by unmarried women in the 1930s. The policy created a relative disadvantage to men, justified by the social conditions at the time.

The Pensions Act 1995 was enacted to equalise the age discrepancy and the methodology followed in subsequent legislation was to stagger the advancement of the pension age by reference to age cohorts. The first change to women’s state pension age contained in the 1995 Act would take effect in 2010, 15 years later.

The reasoning behind the Act was four-fold: first, women were increasingly playing an equal role to men in the economy; second, people were living longer and healthier lives; third, there was an international trend to increase pension ages; and, fourth, occupational pension schemes had started to equalise the normal pension age at 65. Subsequent legislation in 2007, 2011 and 2014 accelerated this process and increased the normal retirement age, with the focus of the reasoning behind the legislation being the reduction of the ‘dependency ratio,’ (the ratio between the working population and the population in receipt of old age pensions).

Issues before the Court

The Claimants’ case was that whilst the legislation had intended to equalise the position of men and women, the effect had been to exacerbate pre-existing inequalities, particularly for the Claimants’ generation (born in the 1950s), who were subject to more limited work expectations. The Claimants also asserted that they had received inadequate notice of these changes.

The claim therefore formed three distinct grounds:

1. Age discrimination
2. Sex discrimination
3. The Notice Provisions

1. Age Discrimination

The Claimants advanced arguments under EU Law and under the Convention:

EU Law

The High Court accepted the Claimants’ submission that there is a general EU principle of non-discrimination, but held that the principle was limited in its application since the relevant national rule must fall within the scope of EU law: the receipt of a state pension did not constitute pay within the meaning of the Treaty on the Functioning of the European Union (“TFEU”) Article 157(2), being neither a wage or a salary, and so the equal pay obligation in Article 157(1) had no application. Similarly, although the Equality Directive prohibits discrimination based on age, it specifically excludes social security and social protection schemes.

European Convention

It was accepted that the state pension was a ‘possession’ for the purposes of Article 1, of Protocol 1 (the protection of property) to the European Convention of Human Rights. The Claimants then sought to argue that the UK had discriminated unlawfully contrary to Article 14 and that legislation was manifestly without reasonable foundation. The Court rejected this argument; since case law (Ackerman at 7, Zammit at 70 and Minter at 67) showed that if a State can change the law at a single point in time, then it must also be able to effect the change by a series of changes at different points in time. Although the High Court considered that the question of justification did no arise, it in any event rejected the submission that the legislation was manifestly without reasonable foundation, where the underlying objective was to ensure that the state pension regime remained affordable whilst striking an appropriate balance between state pension age and the size of the state pension.

2. Sex Discrimination

The Claimant raised arguments under EU Law and under the Convention:

EU Law

The Claimants submission relied on Article 4 of the Social Security Directive which prohibits discrimination on the ground of sex. They said that although Article 7 contained a derogation for determining pensionable age, this only applied to discrimination by maintaining unequal state pension ages and not discrimination caused by equalising the state pension age. The Court rejected this argument, holding that Article 7 was not so limited in its application.

European Convention

Again, the Claimants relied on Article 1, Protocol 1 read with Article 14. The Court was not convinced by the allegation of direct discrimination when the legislation served “to equalise a historic asymmetry between men and women”. The more pressing issue was whether the legislation indirectly discriminated against women by removing the “historic asymmetry”.

The Court’s reasoning was as follows: first, a measure can only be indirectly discriminatory if it applies indiscriminately to all, and here it only applied only to women; second, the disadvantages pre-existed the change in the state pension age, and did not cause or exacerbate them; and, third the legislation would in any event be justified as it contained a legitimate foundation and purpose.

3. Notice Provisions

The Claimants’ final submission was that inadequate and ineffective notice was given to them about the changes to the state pension age and that they had a legitimate expectation that the Defendant would provide sufficient notice. The Court held that there was never a prior promise or representation made by Parliament and that successive governments had engaged in a wide consultation process. Therefore, even if the court were able to impose obligations of notice giving proceeding from common law fairness, no breach could commit or empower the court to suspend the operation of primary legislation.

Comment

The extensive media coverage of the decision has focused on the stories of those affected by the changes to the state pension age and one cannot help but feel sympathy for Mrs Delve and the other Claimants. However, the High Court has reached a sensible decision in this judgment, as the EU Directive has a clear aim of achieving progressive implementation of the equal treatment for men and women. It would be odd if legislation which eliminated discrimination was itself held to be discriminatory.

No doubt the DWP will be heaving a sigh of relief on receiving this judgment, as “the government has estimated that a reversal of the pension changes in the Acts of Parliament of 1995 and 2011 would cost £215bn over the period 2010-11 to 2025-26.”