Cockburn, R (on the application of) v Secretary of State for Health

A difference in survivor-pension treatment based on sex may be justified where it formed part of the gradual correction of historical factual inequalities. Equalisation need not automatically have retrospective effect. Under Article 14, the court must consider the measure’s aim, proportionality, historical context, costs, the interests of scheme members and taxpayers, and any mitigating arrangements. In matters involving economic or social strategy, the State has a broad margin of appreciation. A measure will be unlawful only if it lacks an objective and reasonable justification or is manifestly without reasonable foundation.

The claimant, a widower receiving an NHS pension, challenged Regulation G7 of the National Health Service Pension Scheme Regulations 1995. His wife’s pensionable service before 6 April 1988 was disregarded in calculating his survivor’s pension, although the equivalent service would have counted for a surviving widow. The parties agreed that the pension fell within Article 1 of the First Protocol to the ECHR. The issues were whether the claim was out of time under section 7(5) of the Human Rights Act 1998 and whether the difference in treatment breached Article 14.

1. The claim arose when the claimant’s entitlement was determined on his wife’s death in February 2007. It was therefore a one-off act with continuing consequences and was out of time under section 7(5) of the Human Rights Act 1998. It was nevertheless equitable to extend time because the issue was of public importance, affected a substantial group and had caused no identified prejudice through delay.
2. The Article 14 test was that a difference in treatment was discriminatory only if it lacked an objective and reasonable justification. The court applied the approach in Stec v United Kingdom [2006] ECHR 65731/01, including the relevance of the aim pursued, proportionality, the subject matter and background, and the State’s margin of appreciation.
3. The absence of a non-dependent widower’s pension before 1989 was objectively justified by the historical economic position of women and the gradual development of gender equality. It was reasonable for the 1989 Regulations to introduce equalisation prospectively, for service after 5 April 1988, without reopening earlier service.
4. There was no general legal principle requiring the retrospective removal of all past effects of a difference that had previously been lawful. The State could take account of the substantial cost of retrospective equalisation, the policy that the cost would fall on current members or taxpayers, opposition from current members required to fund it, the effect on other public-sector schemes and mitigating arrangements.
5. The 2008 changes did not establish that retrospective equalisation had previously been required. They formed part of a wider package and provided equalisation within a different cost structure. The maintenance of Regulation G7 was therefore objectively and reasonably justified. The claim was dismissed.