Sharon Green v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lord Justice Peter Jackson,Lord Justice Bean |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1686 |
| Docket Number | Case No: CA-2022-001184 |
| Court | Court of Appeal (Civil Division) |
and
[2022] EWCA Civ 1686
Lord Justice Bean
Lord Justice Peter Jackson
and
Lady Justice Asplin
Case No: CA-2022-001184
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Mr Justice Fordham
Royal Courts of Justice
Strand, London, WC2A 2LL
Professor Conor Gearty KC (Hon) (instructed by R. James Hutcheon Solicitors) for the Appellants
Russell Fortt (instructed by Metropolitan Police Service) for the Respondent
Richard O'Brien and Tom Tabori (instructed by the Treasury Solicitor) for the Interested Party/Second Respondent
Hearing date: 30 November 2022
Approved Judgment
This judgment was handed down remotely at 11.00 a.m. on Wednesday 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal is concerned with the question of whether a provision of the Police Pensions Regulations 1987 (SI 1987/257, as amended) (the “PPR87”) is compatible with the Appellants' Article 12 Convention right as scheduled to the Human Rights Act 1998. The provision in question provides that the widow or civil partner of a deceased member of the pension scheme shall receive a pension for life, unless they remarry, form a new civil partnership or cohabit with a new partner in which case it shall cease to be payable.
Background
The provision is contained in the Police Pensions Regulations 1987 (“PPR87”). The PPR87 were made by the Home Secretary, pursuant to powers in sections contained in the Police Pensions Act 1976. The PPR87 contain the scheme rules for the Police Pension Scheme (the “PPS”).
The PPS applies in relation to “Scheme Members” who at the relevant time, were (and may still be) serving members of the police force (“Active Scheme Members”). On their retirement, a Scheme Member ceases to be an Active Scheme Member and an entitlement to a pension arises in accordance with the PPS rules. The maximum pension payable to a Scheme Member on retirement is two-thirds of final salary after 30 years' service and the compulsory retirement age has been increased from 55 to 60, or 65 in the case of ranks above inspector. The level of contribution to the PPS payable by an Active Scheme Member was set at 11% of pensionable salary.
Pension entitlements also arise under the PPS rules in a variety of other situations including pensions for widows and other eligible beneficiaries, referred to as “Survivors' Pension Benefits” (“SPBs”). SPBs are payable at the rate of one half of the Scheme Member's pension for “pre-retirement widows” and a “proportionate” pension for “post-retirement widows” based on service after 6 April 1976. “Pre” and “post” retirement are a reference to whether the police officer married whilst still an Active Scheme Member or not.
The PPS closed to new members in April 2006. A new police pension scheme, the “NPPS” was established by the Police Pension Scheme Regulations 2006 (SI 2006/3415). They came into force on 1 February 2007 with effect from 5 April 2006 for the purpose of membership. A police officer who began their service after 5 April 2006 was entitled to join the NPPS and not the PPS. Furthermore, police officers who were Active Scheme Members of the PPS on and after February 2007 were entitled to transfer to the NPPS.
Under the NPPS amongst other things: the maximum pension was a half of final salary after 35 years of service, payable from the age of 55; the contribution rate was initially 9.5% rising to 11–12.75% of pensionable salary between 2006 and 2015; and SPBs were payable to pre-retirement and post-retirement spouses, civil partners or partners for life.
A further new scheme was established by means of the Police Pension Regulations 2015 (SI 2015/445 (as amended)) which were made pursuant to powers in the Public Service Pensions Act 2013. They came into force on 1 April 2015 (the “2015 Scheme”). Under the 2015 Scheme there is no maximum pension and when one-half of a “career-average revalued salary” can be achieved will depend on the revaluation rate (by CPI + 1.25%) of each year's accrued pension. SPBs are payable to widows, widowers, civil partners and cohabitees for life.
From 1 April 2022, the PPS and the NPPS closed to future accrual of benefits and all Active Scheme Members were transferred to the 2015 Scheme.
Regulation C9
Regulation C9 is entitled: “Termination of widow's or civil partner's pension on remarriage or other event.” The regulation contains seven sub-clauses or regulations. It is agreed, however, that for the purposes of this appeal, it is only necessary to focus upon regulation C9(3). The same approach was adopted before the judge, Fordham J. Regulation C9(3) where relevant, provides as follows:
“Where a widow … or a surviving civil partner … is entitled to a pension under this Part and –
(a) marries or has married,
(b) remarries or has remarried,
(c) forms or has formed a civil partnership or new civil partnership
(d) with a person to whom she is not married lives together as husband and wife, or
(e) with a person who is not her civil partner lives together as if they were civil partners,
she shall not be entitled to receive any payment on account of the pension in respect of any period after her marriage or remarriage, or after the formation of her civil partnership, or after her cohabitation begins.”
SPBs were originally payable only to widows. However, the Police (Pensions and Injury Benefit) (Amendment) Regulations 1992 (“AR92”) were made on 30 September 1992 and came into force on 1 November 1992. By virtue of AR92, SPBs became payable to widowers. That change took effect through an amendment of the definition of “widow”, in Schedule A: regulation 12 AR92. As the judge described it at [11]: a widower's benefit was a proportionate pension, referable only to service postdating the scheme change; and women's contributions were raised by 2%, to the same rate as men's with effect from 1 September 1992 (AR92 regulation 10). Previously, women police officers had paid a lower contribution rate reflecting the inferior nature of their pension benefits.
The PPR 87 were amended to include references to civil partners (both in relation to entitlement and cessation of payment of an SPB) by virtue of the Police Pensions (Amendment) Regulations 2006 (“AR06”). They were made by the Home Secretary on 14 March 2006 and came into force on 5 April 2006. They made amendments consequent on the coming into force of the Civil Partnership Act 2004 with retrospective effect from 5th December 2005, which is the date on which the substantive provisions of that Act came into effect. The PPR 87 have not been amended to entitle cohabiting partners to receive SPBs, however.
A further change to Regulation C9 came about as a result of “death in line of duty” payments. They were extracted from the PPR 87 and set out in one place by the Police (Injury Benefit) Regulations 2006 (SI 2006/932) and came into force on 20 April 2006. Regulation 13 provides for an “adult survivor's special award” applicable to the “surviving spouse or surviving civil partner” of a member of a police force “who dies or has died as the result of an injury received without his own default in the execution of his duty”.
Lastly, as from 18 January 2016, Regulation C9 was amended to include Regulation C9(5) and (6). Those provisions provide that if the Active Scheme Member's death was in the “line of duty” the pension payable to the widow/widower/civil partner shall continue even if they remarry, enter into a further civil partnership or cohabit after 1 April 2015. See The Police Pensions and Police (Injury Benefit) (Amendment) Regulations 2015 (SI 2015/2057).
The Parties
The Appellants are all “Survivors”. Ms Green, the First Appellant, was married to a police officer who died in service. She now has a partner. She says that they do not necessarily want to marry but would like to live together; however, they are prevented from doing so because of the financial impact it would have. She is in receipt of a widow's pension of around £1,000 per month.
Ms Jennings, the Second Appellant, was also married to a police officer who died in service. She is a Scheme Member of the PPS in her own right. In her evidence she stated that Regulation C9 prevented her from progressing with her life and that she found the fact that she cannot share her life with anyone “restrictive, controlling, demeaning, archaic and very depressing”. Further, she has met someone and at some stage they will want to think about moving in with each other but that would not be possible or feasible as a result of Regulation C9. She is in receipt of a widow's pension of approximately £1,000 per month.
Both the Third Appellant, Mr Sneller, and his first wife were serving police officers. He is in receipt of his own police pension of approximately £1,700 per month and a widower's pension of around £1,100 per month. He has a partner who moved in with him after these proceedings were commenced. He informed the PPS and his widower's pension was stopped as from December 2020. He has since married his partner.
I have only set out the bare bones of what the judge described as the Survivors' “lived experience”. He sought to encapsulate their evidence at [33] – [35] of the judgment and reference should be made to those paragraphs for a fuller picture of their experience.
The Appellants were represented before us by Professor Gearty KC (Hon) who took on the role of...
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