Langford v Secretary of State for Defence

Under the Armed Forces Pension Scheme, a person with a subsisting marriage is prevented from marrying the deceased member for the purposes of Rule E.2(3)(b), even if divorce might later be obtained. The rule focuses on whether a legal impediment existed at the date of death.

Article 14 discrimination may arise from the status of living with one person as a partner while remaining married to another. However, comparison and justification are assessed in the context of the pension scheme. The presence of another marital relationship is a relevant difference, and differential treatment on this non-suspect ground is subject to a low standard of justification. Harsh operation in an exceptional case does not make otherwise justified treatment unlawful.

Jane Langford appealed under section 151(4) of the Pension Schemes Act 1993 against a determination of the Deputy Pensions Ombudsman under section 146(1)(c). The Ombudsman had rejected her complaint concerning the refusal of a survivor’s pension under the Armed Forces Pension Scheme.

Ms Langford had lived with Air Commodore Christopher Green as his partner for approximately 15 years, but remained married to another man. The appeal concerned whether she and Mr Green were “prevented from marrying” under Rule E.2(3)(b), and whether exclusion from the pension unlawfully discriminated against her under Article 14 of the ECHR read with A1P1.

The appeal was dismissed.

1. Construction of Rule E.2(3)(b). The words “were not prevented from marrying” refer to the existence of a legal impediment to marriage at the member’s death. A subsisting marriage of either the member or the adult dependant is such an impediment. It is the paradigm case addressed by the rule. The possibility that divorce might later be obtained, or that divorce might in some cases be relatively straightforward, does not alter that conclusion. The Scheme administrator is not required to investigate the prospects or likely timing of divorce.
2. Article 14 status. The claimant’s position—living with one person as a life partner while remaining married to another—was capable of constituting a personal characteristic or status for Article 14 purposes. The fact that it was a subset of married persons, and often voluntary, did not prevent it being treated as a status.
3. Analogy and justification. A person dependent on a member who is free to marry is not in the same position, for the purposes of the Scheme, as a person unable to marry because of a subsisting marriage. A married member will ordinarily have another person with a potential claim to support, while Rule E.1 provides for a surviving spouse or civil partner. The claimant was not, however, properly analogous to a sibling, because a sibling would not satisfy the requirement of cohabitation as partners.
4. Standard of justification. Differential treatment on this non-suspect ground, in the allocation of public pension funds, required only a low level of justification. The relevant difference supplied that justification. The fact that the rule operated harshly in an exceptional case did not make it unlawful. The claimant’s exclusion therefore did not breach Article 14 read with A1P1.

1. Deputy Pensions Ombudsman: Determination dated 14 April 2014 dismissing the complaint and finding that the Scheme rules had been correctly applied.
2. High Court (Chancery Division): Permission to appeal out of time was granted by Proudman J on 2 October 2014. The appeal on points of law was dismissed.