Court of Appeal dismisses challenge to increase in state pension age
9 October 2020
In Delve and Anor v SSfWP  EWCA Civ 1199, the Court of Appeal dismissed the challenge brought against the series of Pensions Acts between 1995 and 2014 which equalised the state pension age for women with that of men by raising the state pension age for women from 60 to 65 and then raising the age at which both men and women can claim their state pension.
The Appellants were two women born in the 1950s, whose pension age has been raised to 66. They contended that although one of the aims of the Pensions Act 1995 was to end the discrimination based on gender, “this equalisation has run ahead of actual improvements in the economic position of women in their age group.” 
It was their contention that this gives rise to:
1. direct age discrimination contrary to Article 14 ECHR in conjunction with Article 1 of the First Protocol (A1P1); and
2. indirect sex discrimination contrary to EU law and indirect discrimination contrary to Article 14 on grounds of sex or of sex and age combined.
It was also argued that the Secretary of State failed in her duty to notify them far enough in advance of the fact that they would not, as they expected, start receiving their pension at age 60.
The Court rejected each ground of appeal.
Ground 1: Age discrimination contrary to Article 14 ECHR
The Court held there was no direct discrimination on grounds of age contrary to Article 14 ECHR.
Is there a valid comparator group?
The Pensions Acts create three different cohorts of women:
i) women born before 6 April 1950 who attain pensionable age at the age of 60 (‘pre-1950s women’);
ii) women born between 6 April 1950 and 5 October 1954 who attain pensionable age when they are aged between 60 and 66; and
iii) women born after 5 October 1954 but before 6 April 1960 who attain pensionable age at 66.
The Appellants fell within the third group and asserted that they suffered from a clear difference in treatment compared with the two other groups insofar as they would not receive their pension until the age of 66.
Citing Zammit and Cassar v Malta (Appn 1046/12) (2017), the Respondent submitted the Appellants could not rely on pre-1950s women as a comparator group because “the difference in treatment between the two groups is a consequence of bringing into effect changes to the legislative regime” .
Nevertheless, the Court of Appeal observed there was an additional factor in that the comparator group of pre-1950s women is defined also by their date of birth, and not simply the implementation date of the measure . This meant there was a valid comparator group.
The relevant test was whether the measures were “manifestly without reasonable foundation”. The Court of Appeal held that the Divisional Court had been correct to approach the issue on the basis that this legislation operated in a field of macro-economic policy where the decision-making power of Parliament was “very great”: [quoting from para 53].
Whilst the Court was sympathetic to the financial and psychological difficulties faced by the Appellants,
it [remained] impossible to say that the Government’s decision to strike the balance where it did between the need to put state pension provision on a sustainable footing and the recognition of the hardship that could result for those affected by the changes was manifestly without reasonable founding. 
Ground 2: Indirect sex or sex/age discrimination
Indirect sex or sex/age discrimination under EU law
Article 4 of the Social Security Directive prohibits both direct and indirect discrimination, with particular reference to family or marital status.
Article 7 sets out five exclusions, most of which are directed at provisions which are likely to favour women. The SSfWP relied on the exclusion in Article 7(1)(a) which permits Member States to determine the age for granting old-age or retirement pensions provided that the justification was periodically reviewed.
In the submission of the Appellants, “Article 7 only permits Member States to maintain in place temporarily [emphasis added] legislation which sets different state pension ages for men and women.” 
The derogation for discrimination between the sexes in setting unequal state pension ages was distinguished, they claimed, from “an equalisation measure [emphasis added] that indirectly discriminates against a particular cohort of women who are disadvantaged as compared to men of the same age.” 
The Court of Appeal rejected this argument, holding that it would have “absurd” policy implications which Article 7(2) expressly sought to prevent . In sum,
The need for the derogation arises as much from legislation which makes a progressive adaptation towards equalisation as it does from the temporary retention of the differential pension ages. 
Indirect sex or sex/age discrimination under Article 14
The Court of Appeal also rejected the claim for indirect discrimination under ECHR Article 14.
The relevant comparator group relied on by the Appellants was men between the ages of 60 to 66. Like women between those ages, such men do not receive a pension and also suffer an increase in their pension age from 65 to 66. Despite this apparently equal treatment, however, the Appellants argued that this affected women more disadvantageously than men, because men in that age group were better able to bear that lack of support.
The Divisional Court held the Appellants failed both elements of the indirect discrimination test in Essop  UKSC 27. First, the legislation does not apply indiscriminately to all, as it applies only to women born after 1 April 1950). Secondly, the removal of the earlier pension age for women does not satisfy the need for a causal link between the measure and the disadvantages affecting these women, as the disadvantages faced by the women “existed anyway”, in the sense that they are rooted in “traditions and cultural norms which meant that women did not have the same work expectations or opportunities as men of the same age.” [quoted at 75]
In the submission of the Appellants, however, the disadvantage women suffer falls within the definition of indirect discrimination given by the ECtHR in JD and A v United Kingdom (Appn 32949/17) . In that case, which concerned the “bedroom tax”, the ECtHR held at para  that “a policy measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group.”
In reliance upon this ruling, the Appellants argued that because “a higher proportion of women in their age group need the state pension to pay for their basic living costs, they suffer a particularly prejudicial impact when compared to men from the lack of the state pension between the ages of 60 to 65.” 
The Court of Appeal held that such a broad application of JD and A would result in a “significant expansion of the law”. Nevertheless, even if the test from JD & A was to be applied, it would still not be possible to establish a causal link between the withdrawal of the pension from women in the age group 60 to 65 and the disadvantage caused to that group. This was because
there may well be other groups with a different protected characteristic combined with age who can also show that because they have suffered disadvantage in the work place over the course of their lives, they are more reliant on a state pension than comparator groups and so were adversely affected to a greater degree by the increases in pension age since 1995. 
Furthermore, this reasoning would turn the state pension into a means-tested benefit, instead of recognising its linkage to payments of national insurance contributions over the course of the claimant’s working life.
In sum, the preponderance of social inequality “does not make it indirectly discriminatory to apply the same criterion for eligibility to everyone, if that criterion is not more difficult for the group with the protected characteristic to satisfy.” 
Justification in respect of sex discrimination or sex/age discrimination under Article 14
The Court considered the Appellants’ argument in the alternative, holding that even if the current state pension regime was indirectly discriminatory, it was still justified. The Pensions Acts are primary legislation dealing with “controversial matters of huge political weight and clearly fall within the macro-political field.”  They were not manifestly without reasonable foundation.
Ground 3: Notification
The Appellants further argued the SSfWP breached an obligation to notify them of their new pension age “adequately and effectively”. This duty was argued to arise because they had a legitimate expectation that the extant pension regime would continue and because notification was required at common law to ensure procedural fairness.
Upon consideration of some of the major procedural fairness authorities (e.g. R (BAPIO Action Ltd v SSHD)  EWCA Civ 1139, citing Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180), the Court rejected these two submissions.
There was no common law duty to notify those affected by the change in state pension age, especially considering the measure under challenge is itself primary legislation. Further, the Divisional Court was entitled to conclude as a fact that the Department had given “adequate and reasonable” notification through the publication of Green and White Papers, information leaflets and media engagement over many years .
Ground 4: Delay
The final ground concerned procedural issues pertaining to delays in bringing the judicial review claim. In the proceedings before the Divisional Court, Lang J had granted an extension of time.
The issue of delay was a factor which could have affected the Court’s discretionary grant of relief. The Court of Appeal upheld the Divisional Court’s ruling that “the long delay in bringing the claims would have made it almost impossible to fashion any practical remedy” . Moreover, in any event, that relief could still be refused by the court where there had been undue delay in bringing the claim.
The opacity of the facts in this judgment risk obscuring the clarity of the principles applied. In each substantive ground of appeal, the Court was conscious of its constitutional role vis-à-vis Parliament and was justifiably firm in its refusal to dilute the test for assessing the reasonable foundation of macro-political decisions.
More interesting was the epistemic discrepancy between the Appellants’ conceptualisation of indirect discrimination and that of the Court under the second ground of appeal. At a philosophical level, the Appellants were unsuccessful because they sought to reconcile the historical preponderance of structural and multi-dimensional inequality with a paradigm which requires the establishment of a causal link between the measure and the particular disadvantage suffered by the group and the individual.
The Court described their proposal to apply the legal test under JD and A as heralding a “significant expansion” in the law. Alternatively, the Court’s hesitancy reveals a limitation in extant discrimination law, in respect of its incapacity to remedy historical disadvantages accruing across multiple, intersecting protected characteristics. That speaks to a deeper – theoretical – lacuna in current jurisprudence, namely its requirement to establish relations of agency between a policy and its social impact. This results in an unfair situation where disadvantages which “existed anyway” (i.e. structural disparities) are excluded from the purview of unlawful discrimination.
Nonetheless, it is important to emphasise that the Court’s rejection of the Appellants’ argument was shaped by the nature of the state pension as a universally accessible, contribution-based instrument. This functional, contra doctrinal, analysis suggests the courts may be open to a holistic application of JD and A in future discrimination cases pertaining to social security.
Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini