R Catherine Harvey v London Borough of Haringey

JurisdictionEngland & Wales
JudgeMr Justice Julian Knowles
Judgment Date30 October 2018
Neutral Citation[2018] EWHC 2871 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4760/2017
Date30 October 2018

[2018] EWHC 2871 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Julian Knowles

Case No: CO/4760/2017

Between:
The Queen on the Application of Catherine Harvey
Claimant
and
(1) London Borough of Haringey
(2) Secretary of State for Housing, Communities and Local Government
Defendants

Nigel Giffin QC and Patrick Halliday (instructed by Bindmans LLP) for the Claimant

James Cornwell (instructed by Borough Solicitor) for the First Defendant

Julian Milford and Christopher Knight (instructed by GLD) for the Second Defendant

Hearing dates: 26 and 27 June 2018

Judgment Approved

Mr Justice Julian Knowles

The Honourable

Introduction

1

This is an application for judicial review with the permission of Her Honour Judge Cooke sitting as a Deputy High Court Judge in respect of the refusal of the First Defendant (‘the Council’) of 11 July 2017 to pay Ms Catherine Harvey, the Claimant, a survivor's pension following the death of her co-habiting partner, Mr Stephen Roe. Mr Roe was an employee of the Council until October 2003, when he was made redundant. At that point he became a pensioner member of the Local Government Pension Scheme (‘LGPS’/‘the Scheme’), into which he had paid during his career in local government. He continued to receive his pension until his untimely death in 2016.

2

The Claimant maintains that the Council's refusal to pay her a pension is discriminatory and in violation of Article 14 of the European Convention on Human Rights (‘ECHR’/‘the Convention’), read with Article 1 of Protocol 1 to the Convention (‘A1P1’), and thus that the Council's refusal is unlawful as a matter of domestic law pursuant to s 6 of the Human Rights Act 1998 (‘ HRA 1998’).

3

At the hearing the parties were agreed that the remedial issues which would arise if discrimination is established might be relatively complicated if they had to be considered on the basis of different potential hypotheses. They were agreedthat it would be easier and more efficient if any argument about them is addressed, if I rule in the Claimant's favour, once I have determined the basis upon which any such discrimination exists. Accordingly, the parties agreed that the hearing be limited to the question of whether there is unlawful discrimination in this case. I agree that is a sensible way to proceed.

The facts in outline

4

The Claimant is 66 and retired. Her evidence is that she lived with Mr Roe as his unmarried cohabiting partner from 1987, when they bought a house together, until his death in June 2016, although towards the end of his life he lived in a nursing home. She says that they lived together as husband and wife and were financially interdependent throughout their relationship. She explains that there was no legal impediment to them marrying, and that their decision not to do so was a matter of personal choice, in particular because of her feminist views. I accept her evidence in full.

5

Mr Roe worked for the Council from about 1979 until 2003, when he was made redundant. Thereafter he received his pension under the LGPS, effectively being treated as if he had retired. He received his full pension, even though he was being treated as retiring early. He also received a lump sum entitlement. Following his death, the Council asked the Claimant to complete a form confirming she was his next of kin. She returned the form in April 2017, having agreed with Mr Roe's family that she was his next of kin for these purposes, he having died intestate.

6

In May 2017 the Council wrote to the Claimant to inform her that there had been an overpayment of pension, and that no further pension payments were due to Mr Roe's estate. On 30 June 2017 she wrote to the Council asking it to confirm whether she was eligible for any survivors' benefits. The Council responded as follows on 11 July 2017:

“Unfortunately for a co-habiting partner to be entitled to receive a survivor's pension, the member must have paid into the LGPS on or after 1 April 2008. The late Mr Roe left the LGPS on 27 October 2003; therefore there is no spouse pension entitlement ( sic).”

7

As I shall explain later in this judgment, upon the ordinary meaning of the applicable rules of the LGPS, this statement was correct, and is conceded by the Claimant to have been so: under the rules, she was not entitled to a survivor's pension following Mr Roe's death. The rules provide the survivor of a person in Mr Roe's position with a pension if they are a married spouse (whether same-sex or different sex) or a civil partner, but not if they are an unmarried cohabiting partner.

8

The Claimant's ultimate complaint is against these rules, which are contained in the various statutory instruments which govern the LGPS. The Secretary of State, the Second Defendant, is responsible in law for this legislation, made under the Superannuation Act 1972 (‘SA 1972’). From time to time, the Secretary of State has introduced a new set of rules for the LGPS, each set of rules constituting a new pension scheme with differing benefits. Such new schemes were introduced in 1997 (‘the 1997 Scheme’), in 2008 (‘the 2008 Scheme’), and in 2014 (‘the 2014 Scheme’). In this judgment when I refer to ‘the Scheme’ I am referring to these three schemes collectively unless the context otherwise indicates. Under the 1997 Scheme, a survivor's pension was not payable to an unmarried cohabiting partner; under the 2008 and 2014 Schemes, it was and is payable. Mr Roe's position was governed by the 1997 Scheme, because that was the Scheme in place when he was made redundant in 2003.

9

As I have said, the Claimant alleges that the refusal to pay her a survivor's pension constitutes unjustifiable discrimination contrary to Article 14 read with A1P1 of the Convention, as given effect in domestic law by the HRA 1998. She relies upon her status as an unmarried person cohabiting with a partner whose active membership of the LGPS ceased before 1 April 2008 (a ‘Pre-2008 Cohabitee’). On that basis, she asserts that she has suffered unlawful discrimination in comparison with:

a. Spouses of persons whose active membership of the LGPS ceased before 1 April 2008 (‘Pre-2008 Spouses’);

b. Unmarried persons who cohabit with partners who remained active members of the LGPS on or after 1 April 2008 (‘Post-2008 Cohabitees’).

10

It is common ground that both of these suggested comparators are entitled to receive a survivor's pension.

11

The Claimant also alleges indirect age discrimination against what she terms ‘older surviving cohabitees’.

12

The Council and the Secretary of State resist the claim. Their principal arguments are that:

a. The Claimant is not in a relevantly similar position to either of the classes of person to whom she compares herself, and because that is a pre-requisite of an Article 14 claim, the Claimant's case fails at the outset.

b. The Claimant's age based complaint is without substance, in that the LGPS does not define benefits by reference to age. It is not indirect age discrimination for a pension scheme to be revised prospectively with effect from a certain date.

c. In any event, any difference in treatment has an objective and reasonable justification.

The LGPS and the statutory framework

The LGPS

13

The LGPS is one of the largest defined benefit schemes in the world, with over five million members. These may be ‘active members’, ie, members who are in pensionable service under the Scheme; ‘pensioner members’, ie, persons who are entitled to the present payment of pension or other benefits; or ‘deferred members’, ie, persons other than an active or pensioner members who have accrued rights under the Scheme, ie, persons who have left LGPS employment after a period of pensionable service but before their pension benefits are payable (see s 124(1), Pensions Act 1995).

14

The Scheme comprises around 90 separate funds, each of which is run by an administering authority. These are mainly, although not exclusively, local authorities. They are responsible for investing assets and applying the Scheme's rules so that individuals receive their correct pension entitlement under the Scheme. The Council was the administering authority for the fund from which Mr Roe's pension was paid.

15

The LGPS's funds are maintained by the administering authorities separately from the funds which they hold in other capacities. These funds are comprised of contributions from scheme members, scheme employers, and returns from the assets in which those contributions are invested. Together, as at March 2017, the administering authorities held assets of around £259 billion invested in a range of UK and global equities and bonds. The Council's pension fund comprised about £1.3 billion, or 0.5% of the LGPS's funds at that date.

16

As I have explained, strictly speaking, the LGPS consists of a series of different pension schemes in particular, the 1997 Scheme, the 2008 Scheme, and the 2014 Scheme. The way in which they operate can be summarised as follows. When a new scheme comes into force active members in the old scheme are transferred into the new scheme, subject to transitional protections for their accrued rights. Thus, it is likely that long-term local government employees will have been members of more than one scheme during their employment. Non-active (ie, deferred or pensioner) members at the time of the introduction of a new scheme remain in the previous scheme (although transitional provisions generally allow deferred members to become members of the new scheme if they rejoin LGPS employment after it has come into force). The old scheme remains in existence to allow payments to be made to pensioner members, but is closed to new members. Thus, when Mr Roe was made redundant in 2003 and became a pensioner member of the 1997 Scheme he...

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