Who won the latest battle in the argument about the state pension age?

In the latest battle between women born in the 1950s and the Government, about the state pension age, the women were unsuccessful at the Court of Appeal. It upheld the earlier decision of the High Court that introducing the same state pension age for men and women did not amount to unlawful discrimination. However, the fight may not be over.

Overview

In September 2020, the Court of Appeal rejected a claim to roll back to 60 the women’s state pension age for women born between 6 April 1950 and 5 April 1960 in the case The Court of Appeal (Delve v Secretary of State for Work and Pensions) [2020] EWCA Civ 1199, 15 September 2020.

The women said the changes had run ahead of the economic position of women in their age group. Women born in the 1950s were not treated equally with men in their working lives and have therefore arrived into their early 60s in a poorer financial position than men. However, the Court of Appeal said the changes were not discriminatory or made manifestly without reasonable foundation.

The women (supported by campaign group Backto60) are now considering whether to bring a further challenge in the Supreme Court.

Background

The state pension age is the earliest age you can claim your state pension. Your state pension age depends on your gender and the year you were born.

A series of Pensions Acts between 1995 and 2014 equalised the state pension age for women with that of men by raising the state pension age for women from 60 to 65 and then raised the age at which both men and women can claim their state pension.

The changes were stated to be driven by two factors:

• Changing demographics with longer life expectancy, and
• A policy decision to equalise pension entitlement as between men and women, in line with the requirements for private pensions systems.

Almost exactly a year ago (3 October 2019) the High Court held that, raising women’s state pension age from 60 to 65 (and subsequent increases to 66 and upwards) 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. Finally, the legislation introducing the changes in state pension age is outside the scope of EU law.

For details of the High Court decision, see our earlier article here.

In the Judicial Review application, Ms Delve (62) and a further witness Ms Glynn (63) gave evidence of the hardship caused by the changes, on behalf of others in their position (commonly known as the 1950s women) and backed by campaign Backto60.

They claimed that legislation which increased the state pension age for women born between 6 April 1950 and 5 April 1960 was unlawful, affecting up to 3.9 million women who did not have adequate notice of such changes.

The significance of the dates is that a woman born before 6 April 1950 would receive her state pension at age 60 but a woman born after that date would only receive her pension on a specified date when she was aged between 60 and 65, depending on her date of birth.

The Court of Appeal held, amongst other things, that:

• Legislation raising the pension age for a cohort of women was not discriminatory on the basis of either age or sex under either EU law or the European Human Rights Convention.
• It could not be said that any of the changes to the law were made manifestly without reasonable foundation.
• A Government does not have a positive legal duty to notify affected persons when they are affected by changes made in an Act of Parliament. Notification is desirable, but there is no cause of action unless any notification is inadequate or unreasonable.
• Claims should be brought within 3 months of the grounds to make the claim arising, and not where legislation has been in force for many years.
• The Court will not ignore or be indifferent to the hardship suffered by many individuals but will not intervene in the absence of legal grounds to revisit a decision of the legislature. 

Comment

The 1950s women’s plight was not helped by the fact that the changes in law were embraced by successive administrations; Conservative, Labour and the 2010–2015 Conservative/Liberal Democrat coalition.

The Government warned that full restitution to women affected would cost the taxpayer “in the region of £215 billion”. In the context of the current pandemic crisis (and before that, the 2018 Court of Appeal McCloud judgement that public sector pensions reform was discriminatory) this would have serious implications for the Treasury.

The latest age in sight is currently 68 (for a man or woman born 6 April 1978 and later). The Government, pre-pandemic, said it had no intention of increasing it again. In the new world, it could end up being another area where younger people feel disadvantaged by having to work longer than those who came before them.