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

A prospective pension reform is not immune from scrutiny under Article 14 merely because a more favourable cohort falls outside the new regime. A comparator defined by a protected characteristic may be valid. However, primary legislation governing state pensions forms part of macro-economic and social policy. It is justified unless it is manifestly without reasonable foundation.

Indirect discrimination requires a sufficient causal link between the measure and group disadvantage. It is not enough that people with a protected characteristic are disproportionately poorer and therefore suffer more from loss of a non-means-tested benefit. The common law does not impose a general duty to give individual notice of changes made by primary legislation.

Two women born in the 1950s challenged legislation which equalised the state pension age for women with that of men and then increased the pension age for both sexes. Their state pension age was 66. They alleged age discrimination under Article 14 of the European Convention on Human Rights read with Article 1 of the First Protocol, indirect sex or combined sex-and-age discrimination, and inadequate notification of the changes.

The Divisional Court dismissed the judicial review claim: [2019] EWHC 2552 (Admin). It held that the legislation was justified, that the EU social-security derogation applied, that no notification duty arose, and that delay would in any event prevent effective relief. The claimants appealed. The central questions were whether the pension-age regime was discriminatory, whether the Secretary of State owed a duty of notification, and whether the challenge was timeous.

1. Appeal dismissed. The claimants could rely on women born before 6 April 1950 as a potential comparator for their Article 14 age-discrimination claim. Strasbourg authority did not establish that a comparator was invalid merely because it remained subject to an earlier legislative regime where the distinction was also drawn by age. Nevertheless, the pension-age reforms were justified.

2. The applicable justification standard was whether the measure was manifestly without reasonable foundation. In reviewing primary legislation concerning welfare benefits and pensions, courts must accord great weight to Parliament’s assessment of macro-economic and social policy. The extensive consultation, demographic change, increased life expectancy, public-finance pressures, phased implementation, and mitigating measures meant that the legislative choices were not manifestly without reasonable foundation.

3. Article 7(1)(a) of Council Directive 79/7/EEC covered progressive measures determining pensionable age, including measures equalising that age. It was not confined to the temporary retention of different ages for men and women. The EU indirect-sex-discrimination claim was therefore excluded from the Directive’s scope.

4. The Convention indirect-discrimination claim also failed. Historic workplace and caring disadvantages affecting women were real, and their origin in social norms did not deprive them of legal significance. But a sufficient causal link was absent. A common state-pension age did not impose an eligibility condition that women found harder than men to satisfy. Greater reliance on the pension by poorer groups, among whom women were disproportionately represented, could not convert a contributory and non-means-tested state pension into a benefit payable by reference to need.

5. No legitimate expectation of individual notification arose from the former law. The common law could not superimpose a general notification duty upon primary legislation. In any event, the Department’s publicity, pension forecasts and later direct mailings entitled the Divisional Court to find notification adequate and reasonable.

6. Legislation was not a continuing unlawful act merely because it continued to affect the claimants. Their challenge was substantially out of time once the relevant Acts had been enacted. Although time had been extended at permission stage, the delay would have justified refusal of relief under section 31(6) of the Senior Courts Act 1981.

• Court of Appeal (Civil Division) Dismissed the claimants’ appeal: [2020] EWCA Civ 1199.
• Divisional Court (Administrative Court) Dismissed the judicial review claim challenging the pension-age legislation: [2019] EWHC 2552 (Admin).
• Permission to appeal Granted by Dingemans LJ on 17 January 2020.