R (Carson) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE STANLEY BURNTON |
| Judgment Date | 22 May 2002 |
| Neutral Citation | [2002] EWHC 978 (Admin) |
| Docket Number | Case No: CO/2704/01 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 May 2002 |
[2002] EWHC 978 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Stanley Burnton
Case No: CO/2704/01
Richard Drabble QC, Helen Mountfield and Murray Hunt (instructed by Thomas Eggar Church Adams) for the Claimant
James Eadie and Khawar Qureshi (instructed by the Treasury Solicitor) for the Defendant
Tom de la Mare for the Intervening Party
Introduction
These proceedings raise the important question whether the failure of the Government of the United Kingdom to pay to pensioners resident in certain countries abroad, in the case of the Claimant South Africa, the inflation uprating of their UK State pensions contravenes the European Convention on Human Rights.
The Claimant is resident in South Africa. She spent most of her working life in England, and while she was employed she and her employer, and while she was self-employed she alone, paid full National Insurance contributions. She has been resident in South Africa since 1990. When she was working in South Africa she paid voluntary contributions to protect her right to a UK State pension. She began to draw her pension in September 2000. She receives a British Retirement Pension of £103.62 per week, comprising a Basic Pension of £67.50, an Additional Pension (under the State Earnings Related Pension Scheme, or SERPS) of £32.17 and Graduated Pension of £3.95. She has not received the increase in the Basic Retirement Pension of £5 (from £67.50 to £72.50) that has been paid since 9 April 2001 to those entitled to it; nor has she received the percentage increase in the Additional Pension and Graduated Pension that has been paid since that date. It is accepted on her behalf that she is not qualified for these increases by reason of the relevant provisions of UK legislation and delegated legislation, apart from the Human Rights Act 1998. While the Claimant remains in South Africa, her total British pension will remain frozen at £103.62 irrespective of inflation-based uprating of pensions for those who live in Great Britain and certain other countries referred to below.
The position of the Claimant, as a recipient of a "frozen" pension, is representative of UK pensioners not only in South Africa, but in all the countries of the so-called Old Commonwealth, including Australia, Canada and New Zealand.
Pensioners living in other countries, such as the USA, EU countries, the states of the former Yugoslavia, Japan, Mauritius, Turkey, Bermuda, Jamaica and Israel, receive the same pension from the UK Government as they would receive if they lived here: i.e., their Basic Retirement Pensions are uprated. Of some 760,000 pensioners and widow beneficiaries who live abroad, some 330,000 receive the annual uprating. The remainder do not. The great majority of the remainder live in the Old Commonwealth countries mentioned above.
In some respects, the position of the Claimant is not representative. A pensioner who lives abroad receives initially the full pension that he would have received if he had remained in this country. He is denied the uprating for inflation from the date of his emigration or if earlier the date of his qualifying for his pension: in effect, his pension is frozen at the amount payable when he reached 65 if he had already emigrated or when he emigrated if he did so subsequently. (If he returns to Great Britain, his uprated pension is paid while he is here, but if he leaves his pension reverts to its previous amount.) The effect on the Claimant has so far been relatively minor: she has not received the small percentage uprating applied in 2001. The effect on those who retired long ago is more substantial and may be dramatic. Mr William Hayes, who lives in Australia, reached 65 in 1972. He receives a pension of the inconsiderable sum of £6.75 a week, less than one-tenth of the sum of £72.50 that would be paid to a pensioner with a complete contribution record who retired last year. Someone who retired as recently as 1990 receives only £46.90 a week.
Very many of the expatriate UK pensioners who do not receive uprated pensions have a strong and understandable sense of grievance. They paid their contributions calculated in the same way as pensioners now living here and in, say, the USA, yet they do not receive the same pension. They feel that they have been deprived of an increasingly substantial part of the fruit of their contributions. The real value, at least in the UK, of their pensions is declining from year to year. As a result, they have formed associations to press their cause for equal treatment. As will be seen, before the coming into force of the Human Rights Act 1998 a number of them made applications to the European Commission of Human Rights, complaining that their rights under Article 1 of the First Protocol and under Article 14 had been infringed. Their applications were unsuccessful. However, they contend that recent developments in the jurisprudence of the European Court of Human Rights establish that the UK Government has indeed infringed their rights under those Articles.
In her second witness statement, the Claimant suggested that she had not been informed that her pension would be frozen when she decided to pay her voluntary contributions from South Africa. That allegation has not been pursued on her behalf. Indeed, it is clear that the literature distributed by the Department of Social Security (and sent to her) was explicit and clear as to the position of UK pensioners who live in South Africa. The issues pursued on behalf of the Claimant are not dependent on her individual facts, and turn on the provisions of the applicable UK legislation and of Article 1 of the First Protocol and Article 14 of the Convention.
The Issues
Article 1 of the First Protocol is as follows:
Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
In summary, the Claimant's contentions under Article 1 are as follows:
(a) Her state pension, or alternatively its uprating, are pecuniary rights, and therefore "possessions" within the meaning of Article 1 of the First Protocol.
(b) The failure of the UK Government to pay her the amount of the annual uprating wrongfully deprives her partly or wholly of one or other of those possessions, i.e., part of her pension and the entirety of the uprating.
Mr Eadie, on behalf of the Secretary of State, accepted that the right to a contributory pension is protected by Article 1 of the First Protocol. However, he submitted as follows:
(a) Article 1 does not confer a right to a pension in any particular amount, and is therefore not infringed by the failure to pay uprating to the Claimant.
(b) The right protected by Article 1 of the First Protocol is defined by domestic law. Since UK law does not confer (and has never conferred) a right to an uprated pension on pensioners living in South Africa, the Claimant has not been deprived of any right, and therefore of any possession, within the meaning of Article 1.
(c) The decision of the Government not to pay uprating to the Claimant and to those in her position is objectively and reasonably justified and is therefore a permissible deprivation of such possession as she may have.
Article 14 is as follows:
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political, or other opinion, national or social origin, association with a national minority, property, birth or other status.
It is common ground that there may be a breach of Article 14 without there having been a breach of any other Article of the Convention. Clearly, Article 14 adds to the protection conferred by the other provisions of the Convention. It is not however every act of discrimination that is within the scope of Article 14: it protects only "the enjoyment of the rights and freedoms set forth in this Convention". In Gaygusuz v Austria (1996) 23 EHRLR 230, the Court put the matter in terms that constitute a virtual formula applied in other cases:
"According to the Court's established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them."
Mr Drabble submitted that the complaint in the present case is "within the ambit" of Article 1 of the First Protocol, not least because the right to a state pension is a right protected by Article 1. He submitted that the Claimant has been the subject of discrimination, on the ground of her...
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