Delve & Anor, R (On the Application Of) v The Secretary of State for Work And Pensions

The High Court dismissed the claim for judicial review brought by women born in the 1950s challenging the legislative mechanism by which successive Pensions Acts equalised and raised the State Pension Age (SPA). The court held that (i) state pensions do not fall within the TFEU concept of "pay" under Article 157 and the Equality Directive and Social Security Directive exclude state social security schemes (notably Article 7 of Directive 79/7/EEC), so EU age- and sex-based discrimination challenges to the primary legislation fail; (ii) Convention challenges under Article 14 read with Article 1 of Protocol 1 must be assessed with a wide margin of appreciation and on the manifestly without reasonable foundation (MWRF) test; the policy choices to equalise and raise SPA had legitimate macro-economic and inter-generational justifications and were not MWRF; and (iii) no justiciable common‑law duty arose to give individual ten‑year personal notice or create a legitimate expectation that Parliament would not change SPA without bespoke personal notification, and even if a fairness duty existed there was no effective judicial remedy to overturn primary legislation.

Background and nature of the claim:

The claimants were women born in the 1950s who challenged the mechanism used by successive Acts of Parliament (notably the Pensions Act 1995 as amended and subsequent Pensions Acts 2007 and 2011) to equalise and then raise State Pension Age for women. They sought judicial review on grounds of unlawful direct and indirect discrimination (age and sex), incompatibility with EU law and the European Convention on Human Rights, and on grounds that the Defendant failed to give adequate notice, giving rise to legitimate expectations and breaches of common‑law fairness.

Issues framed by the court:

• Whether the SPA legislation amounted to unjustified direct age discrimination under EU law or the Convention;
• Whether the legislation amounted to direct or indirect sex discrimination under EU law (including Article 4 of Directive 79/7/EEC) or Article 14 ECHR;
• Whether the government had a legal duty to give individualised prior notice such that legitimate expectation or procedural fairness was breached;
• Whether any of the claims were time‑barred by delay.

Court’s reasoning and conclusions:

• EU law: the court accepted the general principle of non‑discrimination in EU law (citing Mangold and Dansk Industri) but concluded that state pensions are social security/social protection schemes outside the scope of Article 157 TFEU and excluded from the Equality Directive ratione materiae by recital and Article 3(3) and by the specific derogation in Article 7(1) of Directive 79/7/EEC. Consequently the EU law age and sex discrimination challenges to primary legislation failed.
• Convention law: the court accepted that state pension entitlements may be "possessions" under Article 1 Protocol 1 and that Article 14 is engaged where relevant comparators exist, but concluded that cut‑off/tapering dates and staged changes to SPA fall within a State’s wide margin of appreciation in social and macro‑economic policy. The MWRF standard applied and the policy choices to equalise and increase SPA had legitimate foundations (demographic change, affordability, inter‑generational fairness and parity with occupational pensions) and were not manifestly without reasonable foundation. Consequently Convention discrimination arguments failed.
• Notice and legitimate expectation: the court held there was no clear and unambiguous promise that Parliament would not alter SPA without prior personalised notification, and the common law does not impose a general enforceable obligation to give individual notice of primary legislation. Even if some fairness obligation existed, no effective judicial remedy could suspend or set aside primary legislation. The factual evidence showed extensive public and targeted communications over the years and material practical limits on direct mail campaigns, supporting the reasonableness of the government’s approach.
• Delay: the principal statutory changes dated back to 1995, and the court observed that very long delay would be fatal in any event.

Outcome: the claim failed on all grounds and was dismissed.

The claim is dismissed. The court found that state pension arrangements fall outside the material scope of EU equal‑pay and social security provisions relied upon (Article 157 TFEU and the Social Security Directive, including Article 7), that the Convention complaints required application of the MWRF standard and were not made out, and that no justiciable common‑law duty to give personalised advance notice of primary legislation had been established; accordingly the judicial review grounds failed.