Harvey, R (On the Application Of) v London Borough of Haringey & Anor

For Article 14 purposes, comparability depends on the precise context and purpose of the measure. An unmarried cohabitee of a pensioner member of an earlier pension scheme is not necessarily in an analogous position to a spouse or to a cohabitee covered by a later scheme. Different treatment arising from a new pension regime and a statutory cut-off date is not, without more, age discrimination.

In the public-sector pensions context, marital status and age were not treated as suspect grounds. The decision to introduce cohabitee survivor pensions prospectively, while preserving earlier scheme arrangements, pursued legitimate objectives including affordability, intergenerational fairness, predictable liabilities and recruitment. It was not manifestly without reasonable foundation and was proportionate.

The claimant sought judicial review of the refusal by the London Borough of Haringey to pay her a survivor’s pension following the death of her unmarried cohabiting partner, a pensioner member of the 1997 Local Government Pension Scheme.

Under the 1997 Scheme, survivor pensions were available to spouses but not unmarried cohabitees. The 2008 Scheme introduced pensions for nominated cohabiting partners, including in respect of certain earlier service, but did not transfer pensioner members of the 1997 Scheme into the new scheme. The claimant alleged discrimination contrary to Article 14 read with Article 1 of Protocol 1, relying on unmarried status, her status as a pre-2008 cohabitee, and age.

1. Claim dismissed. The ordinary meaning of the applicable Local Government Pension Scheme rules did not entitle the claimant to a survivor’s pension.
2. Pension rights fell within the ambit of Article 1 of Protocol 1. Article 14 was not freestanding, but applied to the pension benefits voluntarily provided by the state.
3. The claimant’s unmarried status was capable of being an Article 14 status. However, comparability had to be assessed in the context of the particular pension measure. A spouse under the 1997 Scheme was not in a relevantly similar position because the spouse’s benefit formed part of the package costed and paid for under that scheme, whereas the claimant’s partner had not paid for a cohabitee benefit.
4. The claimant was also not comparable with a cohabitee of an active member of the 2008 Scheme. The two groups were governed by different statutory regimes with different benefit packages. A person subject to one legal regime was not in an analogous position to a person subject to a later regime merely because the later regime provided more favourable benefits in a particular respect.
5. The age claim was parasitic on the comparison with post-2008 cohabitees. The difference arose from different scheme rules operating from a chosen date, not from an age-based criterion. Pension schemes necessarily involve age and service-related concepts, and the introduction of a new scheme with a cut-off date did not itself establish indirect age discrimination.
6. Alternatively, the difference in treatment was justified under the four-stage proportionality approach in [2014] AC 700. The objectives included providing cohabitee pensions for active members, implementing members’ wishes, maintaining affordability and stability, avoiding unexpected liabilities and windfalls for pensioner members, and preserving intergenerational fairness.
7. The measure was rationally connected to those objectives. No less intrusive measure was identified. Balancing the claimant’s interests against the financial and structural consequences for the Scheme, the measure was not disproportionate and was not manifestly without reasonable foundation. It was therefore unnecessary to consider remedy.

First-instance judicial review application. No prior decision or appeal is stated in the judgment.