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

Primary legislation changing State Pension Age through graduated age-based cohorts is not unlawful age or sex discrimination merely because it affects women born in a particular period more severely than other groups. EU non-discrimination principles apply only where the national rule falls within the scope of EU law. The determination of pensionable age for old-age and retirement pensions is excluded by Article 7(1)(a) of Directive 79/7. Under Article 14 read with A1P1, successive legislative cut-off dates may be lawful where supported by a reasonable foundation, including affordability, demographic change, inter-generational fairness and equalisation between men and women.

Common-law fairness and legitimate expectation cannot require individual notification of changes made by primary legislation absent a clear and unambiguous promise. Even if a notification duty existed, breach could not suspend or invalidate the operation of the Acts.

The claimants, women born in the 1950s, sought judicial review of statutory changes equalising and increasing State Pension Age. They challenged the transitional provisions as direct or indirect discrimination on grounds of age, sex, or age combined with sex under EU law and the Convention. They also alleged that insufficient notice of the changes breached legitimate expectation, common-law fairness and public-law rationality.

The defendant maintained that the challenge was to primary legislation, that the relevant EU provisions were outside their scope or subject to an express derogation, that the measures were justified in any event, and that no legal duty required individual notification. The court also considered the effect of delay, including the fact that the principal changes dated from 1995.

1. Age discrimination under EU law. The general EU principle prohibiting age discrimination applies only where the national rule falls within the scope of EU law. State pension is not “pay” under Article 157 TFEU, and the Equality Directive excludes state social security and social protection schemes. The EU age-discrimination challenge therefore failed.
2. Age discrimination under the Convention. A State may alter pension arrangements from a specified date and may implement change through graduated age-based cohorts. The fact that a series of cut-off dates affects different cohorts does not create a fundamental distinction from a single legislative cut-off date. The cohorts are not necessarily comparable merely because they are subject to different pension regimes.
3. Alternatively, the measures were not manifestly without reasonable foundation. They pursued legitimate macro-economic and social-policy aims, including equalisation, affordability, demographic change, longer life expectancy and inter-generational fairness. The court could not require government to adopt compensatory measures or a different balance of interests.
4. Sex discrimination. Removing the historic advantage previously enjoyed by women did not amount to direct discrimination against women. The legislation was directed at removing an historic asymmetry. Nor was the legislation an indirectly discriminatory neutral measure: it applied specifically to women affected by the former pension-age advantage, and the pre-existing social disadvantages relied upon were not caused or exacerbated by the statutory changes. In any event, the measures were not manifestly without reasonable foundation.
5. Notice and legitimate expectation. No clear and unambiguous promise was made that affected individuals would receive personal notice of changes to State Pension Age. Primary legislation is enacted through a public parliamentary process, and common-law fairness cannot impose a notification obligation capable of suspending or abrogating primary legislation. The evidence also did not establish that the Government’s communications were inadequate or unreasonable.
6. The challenge was dismissed. The court added that a delay of more than 20 years in challenging the principal 1995 changes would have been fatal in any event.

High Court (Administrative Court): the judicial review claim was dismissed. The judgment was delivered jointly by Lord Justice Irwin and Mrs Justice Whipple.