Ratcliffe v Secretary of State for Defence

Married and unmarried partners may be in analogous positions for the purposes of article 14 when the comparison is assessed in the context of the particular benefit scheme. A resulting difference in treatment must pursue a legitimate aim and bear a reasonable relationship of proportionality to that aim.

Where pension discrimination rests on marital status rather than a suspect ground such as sex, the court should accord substantial respect to governmental decisions about public expenditure and the timing of reform. Prospective reform does not itself establish that the previous scheme, or the refusal to make reform retrospective, was unjustified.

An unmarried partner claimed a War Pension following the death of a former Royal Navy officer from service-related mesothelioma. The relevant provisions of the Naval, Military and Air Force etc (Disablement and Death) Service Pensions Order 1983 confined pensions for unmarried dependants to an exceptionally narrow class which did not include her.

The Secretary of State rejected the claim. The Pensions Appeal Tribunal and, in October 2006, the Pensions Appeal Commissioner upheld that decision. The claimant appealed, contending that the distinction between married and unmarried partners, and between different classes of unmarried partner, violated article 14 read with article 1 of the First Protocol.

The central questions were whether married and unmarried partners were in analogous positions within the armed forces benefit schemes and, if so, whether the differences in treatment and the prospective commencement of the replacement scheme were objectively justified.

1. The appeal was dismissed unanimously. The claimant and a married surviving partner were in analogous positions for article 14 purposes in the context of armed forces benefits. By the end of 2003, comparable unmarried partners were being treated substantially like spouses under the Occupational Pension scheme, and the Government had announced similar prospective reform of the War Pension scheme. That context distinguished the case from Burden v United Kingdom [2008] ECHR 357.

2. A difference in treatment between persons in analogous or relevantly similar positions is discriminatory when it lacks objective and reasonable justification. The distinction must pursue a legitimate aim and bear a reasonable relationship of proportionality to that aim. Whether the proposed comparators are analogous should be examined in the context and purpose of the particular scheme.

3. Domestic courts do not apply Strasbourg's margin of appreciation directly. They instead accord Parliament and the executive a discretionary area of judgment. The intensity of review depends on the subject matter and the ground of discrimination. Suspect grounds such as race, sex and sexual orientation demand cogent justification. Decisions about economic and social policy, including the distribution of pension funds, ordinarily attract substantial judicial restraint.

4. The distinctions in the pre-2005 War Pension scheme were based on marital or relationship status and were not suspect discrimination. Historically, those distinctions had been justified. Although the Government later concluded that reform was appropriate, it remained entitled to introduce the new arrangements prospectively. The choice of the date from which unmarried partners would be treated like spouses in a public pension scheme was primarily for the Government.

5. The Secretary of State was not required to provide quantified evidence of cost. Retrospective enlargement of a longstanding no-fault scheme would create serious uncertainty about the number of eligible surviving partners and the resulting liability. There is no absolute rule preventing retrospective payments to remedy discrimination, but the circumstances supplied no basis for requiring them here.

6. The differences in treatment were therefore justified under article 14 read with article 1 of the First Protocol. None of the claimant's proposed alternatives—full retrospectivity, eligibility for deaths after September 2003, or payments commencing in April 2005 for earlier deaths—warranted judicial interference.

1. Court of Appeal (Civil Division): Dismissed the appeal unanimously and upheld the refusal of a War Pension.
2. Pensions Appeal Commissioner: In October 2006, Mr J Mesher upheld the Pensions Appeal Tribunal's decision.
3. Pensions Appeal Tribunal: Upheld the Secretary of State's rejection of the claim.
4. Secretary of State: Rejected the claim on 29 April 2004 because the claimant did not satisfy articles 29 or 30 of the Naval, Military and Air Force etc (Disablement and Death) Service Pensions Order 1983.