Ratcliffe v Secretary of State for Defence CAF 52 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 03 February 2009 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | War pensions and armed forces compensation |
| Docket Number | CAF 52 2006 |
| Appellant | Ratcliffe v Secretary of State for Defence |
R(AF) 2/09
(Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39)
|
Mr J Mesher Commissioner 20 October 2006
CA (Ward, Wall and Hooper LJJ) 3 February 2009 |
CAF/52/2006 |
Human rights – unmarried partner of deceased ex-serviceman – whether conditions for entitlement to service pension contrary to Article 14 of the Convention
The claimant had lived with an ex-Royal Navy officer for 17 years, as husband and wife but not married, starting while he was serving. In 2004 he died from mesothelioma due to exposure to asbestos during service and she claimed a pension under the 1983 Service Pensions Order. She did not qualify as an unmarried dependant who had lived as a spouse because of the condition that the relationship had to have begun at least six months before the member’s service began and that the dependant had charge of a child of the service member. She appealed to a tribunal, arguing that the War Pensions Scheme discriminated in favour of married partners as against unmarried partners and/or in favour of unmarried partners who satisfied the criteria in the scheme as against other unmarried partners, contrary to Article 14 of the European Convention on Human Rights coupled with Article 1 of the First Protocol. The tribunal dismissed her appeal and she appealed to the Commissioner. The Commissioner upheld the decision of the tribunal, following CG/1259/2002 and R(G) 1/04 in holding that words like “widow” and “widower” have a plain meaning that cannot possibly be read otherwise than as restricted to the survivors of a legally recognised marriage. The Commissioner also held that there had not been a shift in the social and legal context or some development in case law that could be capable of constituting a good reason for not following Shackell v United Kingdom, 27 April 2000 (application no 45851/99), where it was held that the situation of an unmarried partner was not analogous with that of a widow for the purposes of Article 14, and that, even if the definition of “unmarried dependant who lived as a spouse” did involve discrimination between comparable groups and were therefore caught by Article 14, there was objective and reasonable justification for the discrimination. The claimant appealed to the Court of Appeal
Held, dismissing the appeal, that
- the decision whether a married and unmarried couple are in an analogous situation must be made in the light of the scheme under examination and since, by the end of 2003, unmarried couples were being treated substantially the same as married couples for the purposes of the Occupational Pension Scheme and the Government had announced that it would by 2005 be treating them the same for the purposes of the 2005 Order, by 2004 it would be wrong to say that married and unmarried couples were not, in the context of armed forces benefits, in an analogous position for the purposes of Article 14 (paragraph 72);
- historically there was objective and reasonable justification for the distinction in the War Pensions Scheme between married and unmarried partners and between unmarried partners who fell within the very narrow criteria for a pension and other unmarried partners (paragraph 89);
- the point at which discrimination that was historically justifiable becomes no longer justifiable is a matter for legislative judgment and the case fell within the well-established principle that, where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that the discrimination is not justified (R (Carson) v Secretary of State for Work and Pensions and another [2005] UKHL 37, [2006] 1 AC 173 followed) (paragraphs 52 and 89).
DECISION OF THE PENSIONS APPEAL COMMISSIONER
1. The claimant’s appeal to the Commissioner is disallowed. The decision of the London pensions appeal tribunal dated 10 November 2005 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. The issue in this case is whether a person in a marriage-like relationship with a former member of the armed forces whose death is due to service is entitled to a pension under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (SI 1983/883) although she does not meet the conditions of article 29 (pensions to widows and widowers) or article 30 (pensions to certain unmarried dependants who lived as spouses). The argument for entitlement is based on interpreting those provisions so as not to contravene the European Convention on Human Rights (ECHR) and in particular Article 14 on discrimination.
The background
3. Lieutenant-Commander K served in the Royal Navy from 1 May 1952 to 22 July 1988. He was aged 16 at the date of entry, having been born on 27 January 1936. In 1976 he began a relationship with the claimant in the present case. She described the circumstances as follows in a summary sent to the Veterans Agency:
“The relationship began in February 1976. From 1985 onwards it became an unbroken and true partnership and we were treated by all family and friends as though married.
From 1985 [K] provided considerable financial support. After September 2001 I was not working and lived as a dependant with him at our home in Hitchin where I cared for him and nursed him during the final stages of his cancer.”
They never married and had no children. After leaving service, K was discovered to be suffering from mesothelioma. This was accepted as attributable to exposure to asbestos in service and he was awarded a disablement pension under the Service Pensions Order from some date in 2002 with an assessment of 100 per cent disablement. He died on 4 January 2004.
4. A particularly unfortunate aspect of the case is the following, as the claimant put it in a statement dated 3 June 2005:
“On 1st December 2003 I telephoned the [Veterans Agency] Welfare Office in High Wycombe to ascertain the legal position with regard to pensions etc as [K] was very seriously ill and had been admitted to the local hospice. The Welfare Officer referred the matter to Norcross for a ruling on the case and acknowledged this immediately in an undated letter, a copy of which is enclosed [no copy is in the papers before the Commissioner].
[K] returned home on 10th December 2003 and for a short while was slightly better. He then deteriorated very rapidly over Christmas and was re-admitted to the hospice on 29th December.
I received a reply to my query in the Veterans Agency letter dated 20th January 2004, the day after his funeral [the letter, at page 5, says that it is in reply to a query about eligibility to unmarried dependant’s pension and simply sets out the conditions under Article 30 of the Service Pensions Order].
It took the Veterans Agency almost seven weeks to provide nothing more than the statutory information, when it had been made quite clear that time was of the essence. This is so far outside their standards of performance that it constitutes a breach of their duty of care to [K] and myself. Had the information been provided expeditiously, it would have been possible for us to marry.”
5. The claimant submitted a claim on the form provided by the Veterans Agency, a claim form for a widow’s pension adapted by alterations in pen for an unmarried dependant’s pension. The claim was refused on 29 April 2004 on the grounds that she was not within the definition of an “unmarried dependant living as a spouse” and she did not have in her charge a child of the deceased service member. There was no dispute that K’s death was due to service. It was that decision with which the pensions appeal tribunal (PAT) of 10 November 2005 was concerned.
The relevant provisions of the Service Pensions Order
6. I set out the provisions as in force at the date of claim, before the amendments in 2005 to take account of the creation of civil partnerships. Article 30(1) and (2) provides:
“(1) An unmarried dependant who lived as a spouse of a member of the armed forces whose death is due to service may be awarded a pension in accordance with the following provisions of this article.
(2) Where such an unmarried dependant who lived as a spouse has in her charge a child of the member and is in receipt of an allowance awarded in respect of that child under the following provisions of this Part of this Order, a pension may, subject to the provisions of paragraph (3), be paid to her until she ceases to have that child in her charge or to be in receipt of such allowance.”
The remainder of article 30 does not contain any other category of qualification except for a transitional award on the death of a child. Article 29 makes a pension available to...
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