News and Cases

DOI10.1177/138826270600800105
Date01 March 2006
Published date01 March 2006
Subject MatterNews and Cases
/tmp/tmp-177g9tC7HHFJQh/input proef

NEWS AND CASES
THE STEC DECISIONS
The STEC decisions concerned persons who suffered from a form of discrimination on
grounds of sex, which is still allowed by EU law: i.e. the difference in pension age of
men and women and the related consequences thereof for other benefits. The
claimants have now challenged this before another international court, the European
Court of Human Rights. The first decision concerned the admissibility of the
claimants; the second the decision on the material issue.
Decision
European Court of Human Rights, 6 July 2005, application nos. 65731/01 and 65900/01
Judges L. Wildhaber, President, Mr C.L. Rozakis, Sir Nicolas Bratza, Mr B.M. Upancˇicˇ,
Mr L. Loucaides, Mr J. Casadevall, Mr J. Hedigan, Mr M. Pellonpa¨a¨, Mrs M. Tsatsa-
Nikolovska, Mr R. Maruste, Mr K. Traja, Mr A. Kovler, Mr S. Pavlovschi, Mr L.
Garlicki, Mr J. Borrego Borrego, Mr D. Spielmann, Mr E. Myjer
THE FACTS
1.
The first applicant, Regina Hepple, was born in 1933 and lives in Wakefield.
The second applicant, Anna Stec, was born in 1933 and lives in Stoke-on-
Trent. The third applicant, Patrick Lunn, was born in 1923 and lives in
Stockton-on-Tees. The fourth applicant, Sybil Spencer, was born in 1926 and
lives in Bury. The fifth applicant, Oliver Kimber, was born in 1924 and lives in
Pevensey.
2.
At the hearing on 9 March 2005, the applicants were represented by Mr R.
Drabble QC and Ms H. Mountfield, counsel. The first, second, third and
fourth applicants were also represented by Ms J. Starling, and the fifth
applicant was represented by Mr J. Clinch, both solicitors practising in
London. The respondent Government was represented by Mr D. Pannick QC
and Ms C. Weir, counsel, and also by their Agent, Mr D. Walton, Foreign and
Commonwealth Office.
European Journal of Social Security, Volume 8 (2006), No. 1
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A. THE CIRCUMSTANCES OF THE CASE
3.
The facts of the case, as submitted by the parties, may be summarised as
follows.
Mrs Hepple
4.
On 28 January 1987 the first applicant began to suffer from tenosynovitis, an
industrial disease. From 27 January 1989 she was unable to continue working
and received reduced earnings allowance (‘REA’: see paragraph 16 below). On
15 April 1993 she reached the age of 60 and on 1 May 1996 an adjudication
officer decided that, with effect from 31 March 1996, her award of REA should
be replaced by an award of retirement allowance (‘RA’: see paragraph 20
below).
5.
The applicant appealed against this decision to the Wakefield Social Security
Appeal Tribunal (‘SSAT’), on the basis that had she been a man of the same
age, she would have continued to receive REA, which was more valuable. The
SSAT rejected her appeal on 5 September 1996 and the applicant appealed to
the Social Security Commissioner (‘the Commissioner’).
6.
All five applicants’ cases were joined by the Commissioner who, having heard
arguments on 11 and 12 December 1987, decided on 8 May 1998 to refer three
questions to the European Court of Justice (‘ECJ’: see paragraph 23 below).
7.
The ECJ gave judgment on 23 May 2000 (see paragraph 23 below). On 31 July
2000 the Commissioner, following the ECJ’s ruling, struck out the applicants’
cases where they were the appellants before him and allowed the appeals where
the adjudication officers had been the appellants.
Mrs Stec
8.
On 18 January 1989 the second applicant injured her back at work and was
unable to continue working. She was awarded REA from 24 January 1990. On
13 March 1993 she reached the age of 60 and as from 31 March 1996 her
award of REA was replaced by an award of RA.
9.
The applicant appealed against this decision on the basis of sex discrimination.
The Trent SSAT allowed her appeal on 4 October 1996, and the adjudication
officer appealed to the Commissioner, who referred the case to the ECJ (see
paragraphs 6-7 above).
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Mr Lunn
10.
On 11 November 1973 the third applicant suffered a work-related injury to his
right hand, as a result of which he had to stop working. From 12 May 1974 he
received special hardship allowance, which was converted to REA from
1 October 1986. On 19 May 1988 he reached the age of 65 and from 17 May
1993, when he turned 70, he received a statutory retirement pension. On
26 March 1996 an adjudication officer reviewed the award of REA and decided
that, with effect from 31 March 1996, it should be replaced by an award of RA,
paid at approximately 25% of the REA rate.
11.
The applicant appealed on the ground that a woman in the same
circumstances would have been treated as having retired on or before
19 May 1988 and would have been entitled to a frozen rate of REA for life, a
more valuable benefit. On 24 September 1996 the Stockport SSAT dismissed
his appeal, and Mr Lunn appealed to the Commissioner, who referred the case
to the ECJ (see paragraphs 6-7 above).
Mrs Spencer
12.
The fourth applicant suffered a work-related injury to her neck on 17 July
1966. She was awarded special hardship allowance from 15 January 1967 and
from 1 October 1986 this was converted to an award of REA. Her sixtieth
birthday was on 11 December 1986 and she received a retirement pension
from 23 December 1986. It was decided on 10 May 1993, with effect from
11 April 1988, to freeze for life her award of REA at GBP 25.28.
13.
The applicant appealed to the Bolton SSAT on the basis that, had she been a
man, she would have continued to receive unfrozen REA. The SSAT allowed
her appeal on 30 November 1994, and the adjudication officer appealed to the
Commissioner, who referred the case to the ECJ (see paragraphs 6-7 above).
Mr Kimber
14.
On 12 March 1982 the fifth applicant injured his back at work and was unable
to continue working. He was awarded special hardship allowance from
15 September 1982, converted to REA from 1 October 1986. He reached the
age of 65 on 30 September 1989 and received a retirement pension from
29 September 1994. On 29 April 1996 an adjudication officer reviewed his
award of REA and decided that with effect from 31 March 1996 it should be
replaced by an award of RA.
European Journal of Social Security, Volume 8 (2006), No. 1
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15.
The applicant appealed to the Eastbourne SSAT, on the basis that a woman in
his circumstances could have chosen to have been treated as retired from
10 April 1989, and so would have been entitled to frozen REA for life, a more
valuable benefit than RA. The SSAT allowed his appeal on 2 October 1996 and
the adjudication officer appealed to the Commissioner, who referred the case
to the ECJ (see paragraphs 6-7 above).
B. RELEVANT NON-CONVENTION MATERIAL
Benefits for industrial injury and disease in the United Kingdom
16.
Reduced earnings allowance (‘REA’) is an earnings-related additional benefit
under the statutory occupational accident and disease scheme which was put
in place in 1948. Originally the benefit was known as ‘special hardship
allowance’, but it was recast and renamed by the Social Security Act 1986. At
the time of the introduction of these applications, the relevant legislation was
Part V of the Social Security Contributions and Benefits Act 1992.
17.
REA has, since 1990, been funded by general taxation rather than the National
Insurance Scheme. It is payable to employees or former employees who have
suffered an accident at work or an occupational disease, with the purpose of
compensating for an impairment in earning capacity. The weekly amount is
based on a comparison between the claimant’s earnings prior to the accident
or disease and those in any actual or notional alternative employment still
considered suitable despite the disability, subject to a maximum weekly award
of GBP 40. It is a non-contributory benefit, in that eligibility is not conditional
on any or a certain number of contributions having been made to the National
Insurance Fund.
18.
Under more recent legislation the benefit is being phased out altogether and
no fresh right to REA can arise from an accident incurred or a disease
contracted on or after 1 October 1990. In addition, a succession of legislative
measures after 1986 attempted to remove or reduce it for claimants no longer
of working age, in respect of whom the Government considered any
comparison of ‘earnings’ to be artificial. Before these changes, there had been
a continued right to REA notwithstanding the attainment of retirement age
and REA had been payable concurrently with the State pension.
19.
The method chosen to reduce eligibility was to impose cut-off or limiting
conditions by reference to the ages used by the statutory old-age pension
scheme, namely 65 for men and 60 for women until 1996, then tapering up to
eventual equality at 65 in 2020 (Part II of the Social Security Contributions
and Benefits Act 1992, as amended by the Pensions Act 1995).
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20.
Under the new provisions (Social Security Contributions and Benefits Act
1992), all REA recipients who, before 10 April 1989, had reached either (1) 70,
if a man, or 65, if a woman, or (2) the date of retirement fixed by a notice, at
age 65+ for a man or 60+ for a woman, would receive a frozen rate of REA for
life. All other REA recipients would cease to receive REA, and would instead
receive retirement allowance (‘RA’) either on reaching (1) 70, if a man, or 65,
if a woman, or (2) the date of retirement fixed by a notice, at age 65+ for a
man or 60+ for a woman or on giving up employment at 65 for a man or 60
for a woman.
Contributory and non-contributory benefits in the United Kingdom
21.
In his...

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