Julie Delve v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mrs Justice Whipple |
| Judgment Date | 03 October 2019 |
| Neutral Citation | [2019] EWHC 2552 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3174/2018 |
| Date | 03 October 2019 |
[2019] EWHC 2552 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mrs Justice Hipple
Case No: CO/3174/2018
The Queen on the application of
Michael Mansfield QC, Catherine Rayner, Adam Straw and Keina Yoshida (instructed by Birnberg Peirce Solicitors) for the Claimants
Sir James Eadie QC, Julian Milford and Edward Capewell (instructed by The Government Legal Department) for the Defendant
Hearing dates: 5th and 6th June 2019
Approved Judgment
Lord Justice Irwin and
Introduction
This is the judgment of the Court to which we have both contributed. In successive statutes between 1995 and 2014 Parliament has legislated to equalise the State Pension Age [“SPA”] between men and women. Legislation has contained a timetable for the adjustment of SPA, structured for successive cohorts of women defined by age, initially to age 65 and subsequently to age 66, rising to age 68. The Claimants are women born in the 1950s affected by these changes. The Claimants “seek judicial review of the mechanisms chosen to implement the Government's policy” of raising and equalising the SPA. They also seek judicial review of “the failure to inform women of the changes”.
The claim firstly suggests that the transitional provisions constitute unjustified direct discrimination on grounds of age, in that they represent less favourable treatment on grounds of age of those born on or after 6 April 1950. Next it is said the legislation constitutes indirect sex discrimination against women, incompatible with Article 4 of EU Council Directive 79/7 and Article 14 ECHR. Further, it is argued that the “notice provisions” are unlawful. In the Claimants' Perfected Skeleton Argument, it is said that the “transitional provisions, together with the notice that was given, constitute direct discrimination on the ground of sex, or age and sex combined, contrary to Article 14”. In oral submissions it was submitted that the arrangements for notice were unlawful as constituting a breach of the Claimants' legitimate expectations and/or as conflicting with minimum requirements of fairness pursuant to common law.
The Defendant rejects all these submissions, arguing that the claim represents a challenge to primary legislation, the principal provisions of which are more than twenty years old, that the claim that the legislation is unlawful by reference to age discrimination, founded on EU law, is misconceived, that age discrimination in the provision of State benefits does not fall within the material scope of EU law since social protection schemes are not “pay” for the purposes of Article 157 TFEU, and that indirect sex discrimination is excluded from EU law by Article 7(1) of Directive 79/7/EC (the Social Security Directive). In any event, the Defendant submits that the primary purpose of the provisions in the 1995 and 2011 Acts is to equalise SPA between the sexes, abolishing direct discrimination contained in the foregoing legislation. As to the question of notice, there is no valid basis in law for a duty to notify those affected of changes contained in primary legislation. No legitimate expectation can arise on these facts, nor can justiciable obligations of fairness alter or expand obligations defined by primary statute. The claim advanced is not an attack on procedure but an attack on substantive provisions in statute.
The Defendant further submits that all these claims have been the subject of very great delay and should be excluded on grounds of time, even were they to have any merit.
Historical Background
The background to the relevant changes is set out in the exhaustive and impressive first statement of Duncan Gilchrist, Deputy Director within the Department for Work and Pensions [“DWP”] for Fuller Working Lives and State Pension Policy, dated 21 March 2019. State old age pensions were introduced in 1909 and provided means-tested pensions for men and women over the age of 70. Contributory pensions were first introduced in 1925, provision being made for the payment of a flat rate pension to all pensioners over the age of 65, funded by contributions from the employer, the employee and the State.
As a consequence of the Old Age and Widows' Pensions Act 1940, the pension age for women was lowered from 65 to 60. In the Green Paper preceding passage of the Pensions Act 1995, it was stated that this –
“new inequality was a response to a campaign by unmarried women in the 1930s, many of whom cared for dependent relatives for much of their lives. It also recognised the fact that, on average, married women were several years younger than their husbands.”
It is therefore clear that the reduction of the pension age for women was an act of direct discrimination in their favour (although unlikely to be described in that language at the time) which reflected the circumstances of the day, and created a relative disadvantage for men, thought to be justified by the social conditions then applying.
The modern form of the pension scheme derives from the National Insurance Act 1946. The basic structure was and is that employees and employers pay National Insurance contributions into the National Insurance fund, and benefits are paid out in due course on a “pay-as-you-go” basis: that is to say this year's contributions fund this year's benefits. That basic structure has carried over to the present day. Although no doubt the general exchequer from time to time may smooth fluctuations in the National Insurance contributions and pension benefits, as Mr Gilchrist puts it:
“The state pension is therefore correctly described as a contributory social security benefit. A claimant can only be entitled to the state pension if sufficient contributions have been made through the NI system…”
Understanding this principle is fundamental to understanding decisions about the system of pensions and the level of benefits. At any one time, the working population provides the essential funding for the population in receipt of old age pensions. For this reason the relative numbers in each of these groups is of prime importance.
The Background to the Pensions Act 1995 [“the 1995 Act”]
Occupational pension schemes, as opposed to State pension schemes, constitute “pay” for the purposes of European law. In Barber v Guardian Royal Exchange Insurance Group (C-262/88) [1991] 1 QB 344, the European Court of Justice ruled that it was contrary to the equal pay provisions in Article 157 TFEU for an occupational pension scheme to provide for unequal benefits for men and women. Following that decision, the government of the day indicated a commitment to “achieving equal treatment for men and women in the State scheme as well as in occupational schemes, and in particular to tackling the issue of unequal pension ages” (HC Deb 26 June 1991Vol 193).
In December 1991 the government published the Green Paper “ Options for Equality in State Pension Age” (Cm 1723) in which public views were sought on options for achieving SPA equalisation. The Green Paper noted a significant trend over the previous years, consisting of a real increase in pensioners' net average income. In addition, the figures showed a very considerable increase in the projected number of pensioners in the fourth and fifth decades of the 21 st century, alongside a decreasing working age population. In 1990 there were 3.4 people of working age to every old age pensioner. This was projected to fall to 2.6 workers for every pensioner by 2050. A major factor in that calculation was the continuing considerable rise in life expectancy.
Paragraph 8.9 of the Green Paper summarised the main policy drivers behind the proposal to equalise SPA:
“Whatever solutions are adopted, the Government is clear that it would not be right to continue with unequal pension ages for men and women. There have been immense social and economic changes since these ages were set at their present levels over half a century ago. These changes include the greater willingness of women of all ages and marital status to work, and the spread of part time working. At the same time pensioners generally have been living longer, and have gradually become better off through the development of occupational pensions. To have differing pension ages now is increasingly out of line with developments in the equal treatment of men and women in the employment field, including in occupational pension schemes.”
The Green Paper went on to consider various options, including a common SPA at 60, 63 or 65, or an alternative of flexible retirement. It is not necessary to explore the range of technical options. The 1991 Green Paper received a very large number of responses following a wide process of consultation.
In late 1993, the government of the day indicated that the State Pension Age –
“should eventually be equalised at the age of 65. The change will be phased-in over 10 years, starting in the year 2010, so it will not affect anyone currently aged 44 or older. By the year 2020, the State pension age in Britain will be broadly in line with most of our industrial competitors … All developed countries are making similar changes for similar reasons. Women nowadays tend to spend more of their lives in paid employment. They also live longer than men. Pension schemes need to recognise this and end the current discrimination between the sexes.
In the next century, the ratio of working people to retired people will fall sharply, and the burden on taxpayers will rise. The government's decision will moderate those burdens …” (HCDEB 30 November 1993 Vol 233)
In December 1993, the government published the White Paper “ Equality in State...
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The equalisation of the state pension age in United Kingdom: Indirect sex discrimination?
...of State for Work and Pensions [2020] EWCA Civ 1199.2. Ibid., at 2.3. R (Delve) v. Secretary of State for Work and Pensions [2019] EWHC 2552 (Admin), at 30.4. Ibid.5. Ibid., at 5–29.6. Old Age and Widows’ Pensions Act 1940.7. R (Delve) v. Secretary of State for Work and Pensions [2019] EWHC......