R Iain Cockburn v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWHC 2095 (Admin) |
| Date | 29 July 2011 |
| Docket Number | Case No: CO/1268/2010 |
| Court | Queen's Bench Division (Administrative Court) |
[2011] EWHC 2095 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Supperstone
Case No: CO/1268/2010
John Cavanagh QC and Nicholas Randall (instructed by Messrs Manches LLP) for the Claimant
James Eadie QC and Ivan Hare (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 12 and 13 July 2011
Introduction
Mr Iain Cockburn, the Claimant, is the widower of Dr Clare Cockburn, a General Practitioner. Dr Cockburn became a member of the NHS Pension Scheme ("the Scheme") in August 1982. She retired from the NHS owing to ill health in November 2006 and died in February 2007. On her death the Claimant became entitled to a widower's pension under the Scheme. In these proceedings he seeks judicial review of the level of his entitlement to that pension under Regulation G7 of the National Health Service Pension Scheme Regulations 1995 ("the 1995 Regulations"). It is accepted by the Secretary of State, the Defendant, that Regulation G7 treats him differently from how he would be treated were he a woman. His late wife's pensionable service before 6 April 1988 is discounted when it would not be, in relation to a husband's service, were he a woman. On the basis of Dr Cockburn's pre-1988 service, the Claimant would be receiving an additional entitlement of approximately £3,200 per annum were he a surviving widow.
The parties are agreed that the Claimant's entitlement to a survivor's pension falls within the ambit of Article 1 of the First Protocol to the ECHR. The Claimant alleges that this difference of treatment is unlawful gender discrimination contrary to Article 14 ECHR. The claim is defended on two grounds: first, that it is out of time for the purposes of s.7(5) Human Rights Act 1998 (" HRA"); and second, that Regulation G7 has an objective and reasonable justification, in particular as part of the progressive realisation of gender equality against a background of legitimate historical protection for the weaker economic position of widows.
On 8 October 2010 Holman J granted permission to apply for judicial review, expressly reserving the time limit point under s.7(5) HRA for the substantive hearing.
Legislative history and framework
The Scheme is the occupational pension scheme for employees and self-employed general medical and dental practitioners who work in the NHS. Currently it has in excess of 1.3 million active members. It was introduced in 1948 to provide employees in the then new NHS with a pension. Basic widows', but not widowers', pension cover was included in the package of benefits provided from inception at 5 July 1948.
In 1975 provision was first made for widowers. The National Health Service (Superannuation) (Amendment) Regulations 1975 introduced a dependent widower's pension which enabled a female member to nominate her incapacitated husband to receive a widower's pension on her death. This provision became Regulation 18 of the National Health Service (Superannuation) Regulations 1980 ("the 1980 Regulations").
In 1989 the non-dependent widower's pension was introduced by the National Health Service (Superannuation) (Amendment) Regulations 1989 ("the 1989 Regulations"). The widower's entitlement was calculated on the basis of his wife's service from 6 April 1988. The 1989 Regulations inserted a new Regulation 18A to the 1980 Regulations which provided:
" Widower's pension in respect of service after 5 April 1988
18A-(1) The widower of a person in respect of whom there is a period of contributing service after 5 th April 1988 (including a period added as a result of an election under Regulation 25 made after that date) shall, in relation to that service, be entitled to receive from the Secretary of State an annual widower's pension or, as the case may be, a limited pension and such widower's or limited pension shall, subject as aforesaid, be payable in like circumstances and calculated in like manner as a widow's pension under Regulation 14 or a limited pension under Regulation 16 as the case may be."
The National Health Service Pension Scheme Regulations 1995 ("1995 Regulations") consolidated the 1980 Regulations and the arrangements for widower's pension cover remained unchanged. Regulations G1-G6 provide that a widow's pension is to be calculated on the basis of her husband's entire pensionable service, including pre-April 1988 where relevant. By contrast Regulation G7(3) provides:
"When calculating a widower's pension, any part of a member's benefit that is based on pensionable service before 6 th April 1988 will, subject to paragraphs (4) and (5), be disregarded."
Members subject to the 1995 Regulations are classified as the "1995 Section".
The National Health Service Pension Scheme Regulations 2008 ("the 2008 Regulations") introduce as from 1 April 2008 a new section of the Scheme. This provides pension entitlement for a member's surviving spouse on the same basis for men and women. Existing members of the NHS Scheme remain in the 1995 section unless they leave the Scheme or decide to move their accrued rights to the "2008 Section". It is accepted by the Defendant that the option of moving to the 2008 Section is not open to those, such as the Claimant, who are already in receipt of a pension.
Article 1 of the First Protocol to the ECHR provides:
"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."
Article 14 of the ECHR provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground 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."
Factual background
Mr Robinson, who works for the Department of Health's NHS Pensions and Employment Services Team, in his first witness statement in "An introduction to Occupational Pension Schemes" explains the funding of benefit changes. At paragraphs 20–21 he states:
"20. Often, benefit improvements will only be applied to future service of current employees, as these are the benefits that are still being funded. The benefits already accrued by past service of current employees and by previous employees are expected to be paid for by earlier contributions.
21. In terms of funding, the cost of future service improvements is an ongoing charge, while the cost of past service improvements is an up front capital charge. When a [Defined Benefit] scheme [which the Scheme is] makes detrimental changes to benefits, it may only apply these changes to future service. If a past service benefit improvement were to be made in the [Scheme], the operation of 'cost sharing' between employees and employers in regulations, would result in an increase in the contribution rates of current employees."
The Scheme is unfunded and benefits falling due are paid from tax revenue at that time.
Mr Robinson confirmed that he reviewed the records held by the Department of Health covering the history of the Scheme and development of widowers' pension cover. During the whole of the period between 1948 and 1973 he was able to find only one reference to extending the basic 1948 NHS PS widows' pension cover to widowers. The reason for the general lack of focus on widowers' benefits, in his view, may lie in the demographic and societal differences at the time, identified in the papers that he had seen in the case of R v Secretary of State for Work and Pensions, ex parte Hooper [2005] 1 WLR 1681. Mr Robinson said that he found examples during 1973–4 of the first serious representations from the General Medical and Dental Practitioner interests about the routine provision of widowers' pension cover in public service schemes. There appears to have been little enthusiasm amongst the public service schemes for the routine provision of widowers' pensions, for a number of reasons:
• At that time few men gave up their jobs to run a home for their working wives;
• The life expectancy of women significantly exceeded men and actuarial experiences over a long period showed that few men would survive their wives to receive a widower's pension;
• In view of the above, schemes were generally costed only to provide widows' pensions and it was thought that few scheme members would be prepared to pay the significant increases in contributions required to fund universal widowers' pensions; and
• Introducing widowers' pensions would have diverted the very limited monies available at the time for other pension improvements.
The position of the Health Departments was that any change must be for all Scheme members, not just doctors and dentists.
During the period 1979–1981 there was increased pressure across public service schemes for an extension to widowers' pension cover. The Government had accepted in principle that widowers' pension should be introduced into public sector superannuation schemes, but only "when resources permit". However staff...
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