Changes to the state pension age for women are not directly or indirectly discriminatory to women born in the 1950s.
The Claimants, Ms Delve and Ms Glynn, are women born in the 1950s who have been affected by legislation implemented between 1995 and 2014 which equalised the state pension age (“SPA”) between men and women and raised the SPA from 65 to 66, 67 or 68, depending on age.
This change to the law is thought to affect just under 4 million women, many of who have claimed that they were unaware that their SPA has increased until they applied to draw their pension, or shortly prior to doing so. A campaign group called ‘BackTo60’ crowdfunded in order to launch the claim.
The Claimants sought judicial review of the mechanisms chosen to implement these changes, arguing that it discriminated on grounds of age and/or sex.
Essentially, the Claimants’ case was that there had been discrimination because the legislation had been intended to equalise the position of women and men, but it had not had that effect because it had exacerbated pre-existing inequalities suffered by women when compared with men. The Claimants also argued that there was inadequate notice given of these changes, which frustrated their legitimate expectations and was procedurally unfair.
The High Court dismissed the claim on all grounds.
Because this was a challenge to primary legislation, the Claimants were unable to make claims under the Equality Act 2010 (see Schedule 3, paragraph 2 of that Act), and so relied on EU law and the European Convention on Human Rights (the “ECHR”).
The submission that there is a general principle of non-discrimination under EU law was not actually pleaded at the judicial review hearing itself. In any case, the High Court said that the Claimant’s EU law arguments would have failed because SPA is not within the scope of the EU law.
The Claimants instead argued that they had a right under Article 1, Protocol 1 of the ECHR to peaceful enjoyment of their possessions, and not be deprived of them except in the public interest and subject to conditions provided for by law. Interestingly, it was agreed by both parties that benefits such as state pension are possessions for the purpose of this Article. The Claimants argued that changes to the way the state pension is paid out only to women born in the 1950s infringed Article 14 which states that the Convention rights shall be secured without discrimination.
The Court rejected that argument too. The Court held that:
The women were not being discriminated against. EU case law establishes that a State can introduce a new legislative scheme which effects changes from a given date based on age.
Even if there was age discrimination, it could be clearly justified on the facts (applying the relevant test of justification under the ECHR, which is that the measure is not “manifestly without reasonable foundation”).
The Claimants also argued that the legislation discriminated against them on grounds of sex, or sex combined with age. Again, they relied on EU law, citing Article 4 of the Social Security Directive, which provides there should be no sex discrimination in the provision of benefits.
Unfortunately for the Claimants, a derogation contained in Article 7 of the Social Security Directive expressly permits having different SPAs for men and women. They attempted to side step this, by arguing that the derogation only applied to unequal SPAs, not to the equalising of SPAs. The Court rejected this argument. Equalisation is in line with the overarching objective of the Social Security Directive.
Notice of the changes
The Court noted that the argument that they had not had sufficient notice of the changes is where most emphasis seemed to have been placed by the Claimants.
The Court held that there was no promise of consultation about changes to SPA, and no legitimate expectation of notice. Moreover, the courts are unable to stop an Act of Parliament, so there would be no remedy for a breach even if one was established.