R (Delve and Glynn) v Secretary of State for Work and Pensions

The Court of Appeal dismissed the challenge to legislation that equalised and then raised the state pension age, applying the established Convention framework for discrimination claims and the manifestly without reasonable foundation (MWRF) standard of justification. The court held that Article 14 read with Article 1 of Protocol 1 was engaged but that the Government’s policy choices about timing and phasing of the Pensions Acts (1995, 2007, 2011 and 2014) fell within the wide margin of appreciation on social and economic policy and were not MWRF. The court also rejected claims of indirect sex (and combined sex/age) discrimination because there was no sufficient causal link between the neutral eligibility criterion and the disadvantage complained of, and held that the derogation in Article 7(1)(a) of Council Directive 79/7/EEC precluded the EU-law indirect sex discrimination claim. Finally, the court found no enforceable common-law duty to give individualised notice of legislative change and held the claim was time-barred in any event.

This appeal concerned two women born in the 1950s who challenged successive Pensions Acts (1995, 2007, 2011 and 2014) that equalised the state pension age for women with men and later raised the state pension age for cohorts to 66 (and subsequently higher ages for later cohorts). The claimants sought declarations that the legislation and its implementation unlawfully discriminated (under Article 14 ECHR in conjunction with Article 1 of Protocol 1, under EU law and the Social Security Directive, and under domestic common law) and that the Department failed to give adequate notice. Procedurally, the claim was originally considered in the Administrative Court ([2019] EWHC 2552 (Admin)) and permission to appeal was granted; the appeal was heard in the Court of Appeal ([2020] EWCA Civ 1199).

Nature of relief sought: declaratory relief and judicial review of the Pensions Acts and of the respondent’s notification practices.

Issues framed: (i) whether the claimants could rely on comparators (notably women born before 6 April 1950) for an Article 14/A1P1 age discrimination challenge and, if so, whether the difference in treatment was justified under the MWRF standard; (ii) whether the measures amounted to indirect sex discrimination (or combined sex/age discrimination) under EU law (including the Social Security Directive) or under Article 14; (iii) whether the Department owed a common-law or legitimate-expectation duty to give individualised notice of changes to state pension age; and (iv) whether the claims were out of time.

Court’s reasoning (concise): the court accepted that Article 14/A1P1 was engaged but declined to treat the comparator issue as peremptory: cohorts defined by date of birth can be valid comparators, but even if they were valid the MWRF test applies and the court would not substitute its judgment for Parliament on major social and fiscal policy. The evidence adduced by the Secretary of State about demographic change, life expectancy, dependency ratios and the consultation history demonstrated that the legislative choices were not manifestly without reasonable foundation. On EU law, Article 7(1)(a) of Council Directive 79/7/EEC (derogation) excluded the Social Security Directive claim. On indirect discrimination the court held there was no adequate causal link between a neutral eligibility criterion (common pension age) and the historic workplace disadvantages relied upon; treating the state pension as a means-tested substitute was not appropriate. On notification, the court refused to imply a broad common-law duty to give individualised notice of primary legislation, and found on the facts that the Department’s extensive publicity and targeted communications were not unreasonable. On delay, the claimants had standing from enactment and the claims were substantially out of time; Lang J’s extension of time did not preclude the court from refusing relief on grounds of undue delay.

The appeal was dismissed. The Court of Appeal upheld the Divisional Court’s conclusions that (i) Article 14/A1P1 was engaged but the measures were justified under the MWRF standard; (ii) the Social Security Directive derogation in Article 7(1)(a) precluded the EU-law indirect sex discrimination claim and there was no established causal link for Article 14 indirect discrimination; (iii) no enforceable common-law duty required individualised notice of primary legislative change and, on the evidence, notification was adequate; and (iv) the challenge was substantially out of time so relief would be refused even if other grounds had succeeded.

The claim began in the Administrative Court (Divisional Court: Irwin LJ and Whipple J) where the judicial review was dismissed ([2019] EWHC 2552 (Admin)). Permission to appeal was granted by Dingemans LJ on 17 January 2020. The Court of Appeal heard the appeal and dismissed it ([2020] EWCA Civ 1199). Earlier procedural history includes an initial refusal of permission on the papers by Sir Ross Cranston (20 September 2018) and a contemporaneous order by Lang J (30 November 2018) granting an extension of time for filing the claim if needed.