Eric Carter v The Chief Constable of Essex Police

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Pepperall
Judgment Date21 Jan 2020
Neutral Citation[2020] EWHC 77 (QB)
Docket NumberCase No. QB-2019-00321

[2020] EWHC 77 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice,

Strand, London WC2A 2LL

Before:

THE HONOURABLE Mr Justice Pepperall

Case No. QB-2019-00321

Between:
(1) Eric Carter
(2) June Carter
Claimants
and
The Chief Constable of Essex Police
Defendant

and

The Secretary of State for the Home Department
Interested Party

Chris Buttler (instructed by Slater & Gordon LLP) for the Claimants

Simon Forshaw (instructed by Essex Police Legal Department) for the Defendant

Keith Bryant QC (instructed by Government Legal Department) for the Interested Party

Hearing dates: 17–18 September 2019

Approved judgment

I direct that pursuant to CPR PD39A para. 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Pepperall THE HONOURABLE
1

Eric Carter has lived a remarkable life. Born on 9 November 1924, he served in the Royal Marines at the end of the Second World War and is one of the few surviving men who, with astonishing bravery, stormed the beaches under heavy enemy fire on D-Day. All who take for granted the freedom of living in a peaceful and democratic society owe him and his generation an enormous debt.

2

After the war, Mr Carter served as a police officer between 4 November 1948 and his retirement on 28 February 1977. Although he worked full time for another decade and then part-time for a further 3 1/2 years, Mr Carter has now drawn his police pension for almost 43 years. Mr Carter married his first wife, Jean, in July 1944. She died in 1979 and Mr Carter married June in 1981. Despite marrying after Mr Carter's retirement from the police force, they have now been married for 38 years.

3

The police pension scheme offers the benefit of a reduced widow's pension upon an officer's death. Such benefits are, however, only payable under the scheme applicable in this case to any widow to whom Mr Carter was married at the time of his police service. The scheme was subsequently changed such that pensions are now payable to post-retirement widows in respect of their late husbands' service after 5 April 1978. Since, however, Mr Carter was married to Jean throughout his police career and retired before 5 April 1978, no widow's benefit will be payable to June in the event that she survives her husband.

4

Mr and Mrs Carter argue that such exclusionary rule is unlawful:

4.1 First, Mrs Carter argues that it breaches her convention rights in that, should she outlive her husband, the rule will unlawfully discriminate against her as the post-retirement widow of an officer who retired before 1978.

4.2 Secondly, the Carters argue that the rule indirectly discriminates against Mrs Carter on the ground of Mr Carter's age in that it operates disproportionately to the detriment of the widows of men over 90.

POLICE PENSIONS

POLICE PENSIONS REGULATIONS 1987

5

Mr Carter's pension rights are governed by the Police Pensions Regulations 1987. By regulation C1, the widow of a retired police officer is entitled to a widow's ordinary pension. Regulation C5(1) provides:

“A widow shall not be entitled to a widow's ordinary … pension under regulation C1 … unless she was married to her husband during a period before he last ceased to be a regular policeman.”

6

This restriction on the payment of a widow's pension had been in place throughout Mr Carter's police service. As already indicated, from 5 April 1978 pensions were also payable to post-retirement widows in respect of their late husbands' police service after that date. This change was effected by regulation C5(3), which provides:

“A widow of a regular policeman who, but for paragraph (1) … would be entitled to an award under regulation C1 … shall, instead, be entitled to a pension calculated in accordance with Part IV of Schedule C …”

and by Part IV of Schedule C, which specifies a proportionate pension in respect of any service after 5 April 1978. Of course, regulation C5(3) does not assist the Carters since Mr Carter retired in 1977.

7

In passing I should observe that, like their predecessors, the 1987 regulations referred to a widow's pension. For the avoidance of doubt, the provisions were gender specific even as recently as 1987; indeed, the scheme did not provide an equivalent widower's pension for the surviving spouses of female officers until 1990. While by the social norms of the day such equivalent benefit was not apparently considered necessary, women police officers paid a lower contribution rate reflecting the inferior nature of their pension benefits.

THE HISTORY OF POLICE PENSIONS

8

When Mr Carter joined the police, his pension was regulated by the Police Pensions Regulations 1948 that came into force earlier that year. He was required to pay a contribution of 5% of his salary. Upon retirement after 30 years' service, he would be entitled to a pension of two-thirds of his final salary.

9

The police pension scheme has changed enormously over the 71 years since Mr Carter joined the Essex Constabulary as a young officer. I summarise some of the key changes in the table below:

Years

Accrual rate

Age

Contribution

Widow's pension

1948–1956

1/60 th for first 20 years

2/60 th for next 10 years

Maximum pension: two-thirds of final salary after 30 years

Compulsory retirement age: 55

5%

Basic pension for pre-retirement widows

1956–1972

6 1/4%

One-third of the officer's pension for pre-retirement widows

1972–1978

7%

One-half of the officer's pension for pre-retirement widows

1978–1982

7%

One-half of the officer's pension for pre-retirement widows and, in respect of service after 5 April 1978, post-retirement widows

1982–2006

11%

2006–2015 New joiners

1/70 th Maximum pension: half of final salary after 35 years

Only payable from 55

9.5% rising to 11–12.75%

Survivor's pension payable irrespective of date of marriage

2015- New joiners

1/55.3 Maximum pension: half of career-average revalued salary after 27 years 8 months

Reduced pension from 55; full pension not payable before 60

12.44–13.78%

10

Accordingly:

10.1 Between 1948 and 1982, the contributions made by officers grew significantly from 5% to 11%.

10.2 Over the same period, the benefits payable to an officer's widow were greatly enhanced. There was, however, a disconnect in that the enhancement of a pension for post-retirement widows was introduced in April 1978 and yet the contribution rate did not increase until 1982.

10.3 More recent amendments made in 2006 and 2015 eroded the value of a new officer's pension while also increasing the level of contributions.

11

By comparison with his modern counterparts, Mr Carter paid lower rates of contribution for a significantly more generous final-salary scheme. An officer joining the police today would have to work for 27 years 8 months and wait until age 60 before being able to draw a pension of half of his or her career-average salary. Against that, Mr Carter's pension package was less generous in that no pension will be payable to Mrs Carter should she survive him.

12

Successive reforms of public sector pension schemes, including the scheme for police officers, have been prospective:

12.1 In 1956, the increased widow's pension of one-third of the officer's own pension was introduced in respect of service after 1 April 1956. In fact, serving officers were not obliged to accept the new terms. An officer interested in the enhanced terms:

a) could opt to pay the increased contribution rate of 6 1/4% and thereby start to accrue an enhanced entitlement to a widow's pension for service after 1 April 1956; and

b) if he so opted, he was then also obliged to buy additional years' enhancement in respect of any period of earlier service or, if he did not wish to pay the enhancement costs immediately, elect to take a 1% reduction in his own pension benefits upon retirement.

12.2 In 1973, the increased widow's benefit of one-half of the officer's own pension was introduced in respect of service after 1 April 1972. It was therefore slightly backdated but was not generally available in respect of earlier periods of service unless an officer elected to buy additional years' enhancement.

12.3 As already recounted, the new post-retirement widow's benefit introduced in 1978 was only payable in respect of service after 5 April 1978.

13

As early as 1941, Lord Snell's report on Police Widows' Pensions recommended that the police pension scheme should be amended to extend benefits to post-retirement widows where there was either a child of the relationship or at least three years had elapsed between the marriage and the officer's death. In order to fund this and other improvements to the pension scheme, Lord Snell recommended an increase in contributions from 5% to 7%. Such package was rejected by the Police Federation and the Snell report was not implemented. The matter was reviewed in 1947 and 1949 but it was not thought that there was any case for removing the exclusionary rule.

14

The question of pensions for widows who had married retired servicemen was raised by Airey Neave MP in a debate in the House of Commons on 19 January 1971. Mr Goringe, an official within the Pensions Branch of the Home Office, prepared a departmental briefing on the issue on 5 March 1971 in advance of ministers' meeting a deputation of MPs led by Mr Neave. Mr Goringe noted that the requirement that the marriage had to have taken place before retirement was longstanding. He referred to the Snell report and continued:

“The main reason for the restriction is that it is not seen as a requirement of an occupational pension scheme that it should cover commitments entered into after the man has left the service. Members of the police and fire services are not required to retire until age 55. Many choose to retire on pension...

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2 cases
  • The Queen (on the application of Bloomsbury Institute Ltd) v The Office for Students
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 12 March 2020
    ...Work and Pensions [2019] EWCA Civ 615, paragraphs 60–77, and by Pepperall J in Carter v Chief Constable of Essex Police and another [2020] EWHC 77 (QB), at paragraphs 338 I do not intend to prolong what is already a very long judgment with a detailed examination of whether Bloomsbury enjo......
  • The Queen (on the Application of Esther Louise Leighton) v The Lord Chancellor
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 19 February 2020
    ...Even more recently, the issue of “other status” was considered in Carter and another v Chief Constable of Essex Police and another [2020] EWHC 77 QB, at paragraphs 50–57. In Carter, Pepperall J held that being a post-retirement widow of a police officer with pre-1978 service (who did not h......

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