Changes to the state pension age for women held to be lawful

In a decision attracting a great deal of media interest the High Court has held that raising women’s state pension age was not discriminatory on the grounds of age or sex. Even if it had been discriminatory, the change could be justified because the legislation to increase the state pension age for women had a legitimate foundation and purpose.

The High Court has given judgment in R. (on the application of Delve and another) v Secretary of State for Work and Pensions (3 October 2019) in relation to changes to the state pension age for women that is important for pensions and employment law.

Overview

The case concerned a claim to challenge the government’s increase in the state pension age for women.

The claim failed as the legislation introducing the changes to state pension age is outside the scope of EU law:

• The Equality Directive prohibits discrimination based on age, however payments of any kind made by state schemes or similar including state social security or social protection schemes are specifically excluded from that Directive.
• Unlike occupational pension schemes, state pension schemes do not constitute “pay” (because it is not a wage or salary and is not paid in respect of employment) for the purposes of European Law and therefore the “equal pay” obligation had no application.
• The case of Lord Chancellor v McCloud [2018] EWCA Civ 2844, a case where a taper effect was held to be age-discriminatory, did not apply here because in that case EU law applied.

Background

A campaign group, BackTo60, represented by Michael Mansfield QC amongst others, have recently lost in their judicial review claim challenging the increase in the state pension age (SPA) for women from 60 to 65 (and subsequent increases to 66 and upwards).

By way of background, the state pension age for women had previously been lowered from 65 to 60 in the 1940s.  The policy created a relative disadvantage to men, justified by the social conditions at the time.

The campaign group BackTo60 argued:-

• That raising women’s state pension age (which happened gradually between 2010 and 2018 through changes to primary legislation since 1995) constituted unjustified direct discrimination on grounds of age, in that the changes represent less favourable treatment on grounds of age of those born on or after 6 April 1950;
• That the legislation raising women’s state pension age constituted indirect sex discrimination against women, incompatible with Article 4 of EU Council Directive 79/7 and Article 14 ECHR; and
• That the “transitional provisions, together with the notice that was given, constitute direct discrimination on the ground of sex, or age and sex combined, contrary to Article 14″.
• In oral submissions it was submitted that the arrangements for notice were unlawful as constituting a breach of the claimants’ legitimate expectations and/or as conflicting with minimum requirements of fairness pursuant to common law.

The claimants’ case on discrimination was that the legislation was intended to equalise the position of women and men, but it had not achieved that aim, because the playing field was not equal and the effect of the legislation is to exacerbate pre-existing inequalities suffered by women, by comparison with men.  Those inequalities – which derive from more limited work expectations and the assumption by women of a traditional home caring role – afflict the generation of women born on or after 6 April 1950, in particular.

The modern form of the pension scheme derives from the National Insurance Act 1946.  The basic structure was and is that employees and employers pay National Insurance contributions into the National Insurance fund, and benefits are paid out in due course on a “pay-as-you-go” basis, that is to say this year’s contributions fund this year’s benefits.

The judgment indicated that the above basic structure has carried over to the present day.  The state pension is a contributory social security benefit; a claimant can only be entitled to the state pension if sufficient contributions have been made through the NI system.  “At any one time, the working population provides the essential funding for the population in receipt of old age pensions”.  The judgment concluded that, “For this reason the relative numbers in each of these groups is of prime importance”.

The judgment dismissed the claim on all grounds. It concluded that there had been no discrimination but even if there was, it could be justified because the legislation to increase the state pension age for women had a legitimate foundation and purpose. It also noted that EU law authorities supported the position that member states could introduce new legislation from a given date and, specifically in the context of state pension, could effect changes from a given date based on age.

As to notification, the judgment held that the claimants had no legitimate expectation that the state pension age would not be altered without prior consultation; in any event, it was clear that successive governments had engaged in extensive consultation with interested bodies before the legislation was made.

The Court commented that, in the circumstances, its role was limited. The case concerned “primary legislation, debated in and settled by Parliament, relating to an area of macro-economic social policy with very significant fiscal consequences – in other words, very much within the area of discretion for the policy-maker”, and outside EU law.

BackTo60 have launched a crowdfunding petition to fund an appeal and it is reported that they have raised £50,000 so far, well on the way to the target of £72,000.

The McCloud case

The claimants sought to argue that the McCloud case (to which EU law and principles do apply via the Equality Act 2010) was relevant by analogy because in that case too there was a pensions taper, which the Court held discriminated unlawfully on grounds of age. However, the judgment held such an analogy to be false.  In McCloud, the challenge was to transitional provisions contained in secondary legislation relating to two public sector pension schemes (for judges and firefighters respectively) and the challenge was brought under the Equality Act 2010, which is the domestic implementation of the Equality Directive.  “By contrast, this challenge is to primary legislation to which the Equality Act 2010 does not apply (see Schedule 3, paragraph 2 of that Act), and nor does the Equality Directive.”

On a separate point, the issue of pensions was mentioned in the recent Queen’s Speech on 14 October 2019. This reiterated the government’s commitment to introduce pensions dashboards so that employees can see, online and in one place, all of their pension savings often arising from several different pension pots; thereby helping them plan for the future.