I have spent this morning reading the 21,000 word judgement of the Court of Appeal led by the Master of the Rolls, Sir Terence Etherton.
For the faint hearted I warn you this will make grim reading. But I think the women who have fought so hard to get their pensions back need to be properly informed about the logic used by the judges to come to their decision. It doesn’t mean I agree with it.
Their judgement will cause widespread misery and angst for the women themselves and total delight for the government, ministers, the Department for Work and Pensions and the small number of vocal detractors, mainly from the financial advice and private pensions industry, who didn’t want the women to get a penny.
Appeal on four grounds
The appeal was on four main grounds each of which were dismissed by the judges. Since it is a judicial review it depended a lot on case law which ranged from an immigration case, the bedroom tax, to a sex change case and to EU law and the Convention of Human Rights. It even included a novel way of approaching the law to consultation from Michael Mansfield QC.
To a lay person the case law might sound bizarre but the aim of the lawyers representing the women is to draw out rulings from these diverse set of cases to benefit the cause of the 50swomen to get their money back.
The four grounds for appeal were age discrimination according to an article from the European Convention of Human Rights; indirect sex discrimination or sex/age discrimination;notification and delay.
On the first case the judges rejected it. – citing they could not overrule an Act of Parliament.
“Despite that evidence and despite the sympathy that we, like the members of the Divisional Court, feel for the Appellants and other women in their position, we are satisfied that this is not a case where the court can interfere with the decisions taken through the Parliamentary process. “
They did concede that women got lower state pensions than men.
Women pensioners’ life expectancy – a strain on public fiances
“DWP figures in August 2018 for the mean weekly amount of state pension for men was £158.87 and for women £131.27. Though they may have shorter life expectancy, men will still receive much more state pension than women even taking into account that women live for two years longer. That does not, however, undermine the point that the SSWP [ Secretary of State for DWP] makes that longer life expectancy for women places a strain on public finances,(my emphasis) even if they would have received a lower pension over the years 60 – 65 than a man would receive.”
They rejected the indirect and age/ sex discrimination saying any EU directives allowing a differential age for men and women were a temporary measure.
women carry out 60 per cent more unpaid work than men
The judges note the argument that 50s women are hard done by. They quote facts” that women carry out an average of 60 per cent more unpaid work than men; 86 per cent of single parents are women and single parents have a higher risk of poverty than any other household type. In the 50 – 64 year old age group, women are much more likely to give up work than men because of caring responsibilities. The Appellants submit that it is therefore indirectly discriminatory, subject to the question of justification, for the state pension to be withdrawn from them because their gender adversely affected their ability to earn a living.”
But they recoil from accepting the arguments for fear that a victory would lead to a flood of new demands from other groups.
“it becomes clear what a significant expansion of the law would result from such a broad application … It is undoubtedly the case that many groups have traditionally suffered discrimination in the workplace because their protected characteristic meant that there were fewer opportunities open to them for advancement in stable, well-paid work. That is the case not only for women but for disabled people, for lone parents, for some BME groups and for transgender people.”
They conclude that the state pension is a universal not a means tested benefit therefore it should not be used to right problems caused by discrimination – that should be left to other measures in the political field.
“In our judgement.. there is no sufficient causal link here between the withdrawal of the state pension from women in the age group 60 to 65 and the disadvantage caused to that group. The fact that poorer people are likely to experience a more serious adverse effect from the withdrawal of the pension and that groups who have historically been the victims of discrimination in the workplace are more likely to be poor does not make it indirectly discriminatory to apply the same criterion for eligibility to everyone.”
DWP gave ” adequate and reasonable notification”
On consultation they buy the argument from the DWP that there was enough consultation going back to 1991 when the pension age change was first debated and they cast doubt on even sending a direct mail to everyone on the grounds that people might not read it anyway..
” We therefore dismiss Ground 3 of the appeal on the basis that there was no duty to notify those affected by the change in state pension age and that the Divisional Court were entitled to conclude as a fact that there has been adequate and reasonable notification given by the publicity campaigns implemented by the Department over a number of years.”
Criticism of Ms Justice Lang
Finally they condemn Ms Justice Lang for allowing the judicial review in the first place on the grounds that it was already out of time.
They castigate her for extending the time limit.
“Unlawful legislation is not a continuing unlawful act in the sense that the time limit for challenging it by way of judicial review rolls forward for as long as the legislation continues to apply. If that were the test, there would effectively be no time limit for challenging primary or secondary legislation or for that matter administrative conduct which continues to affect a claimant unless or until the action is withdrawn or revised.”
Lawyers for BackTo60 have asked the judges for permission to appeal their judgement.
Their judgement today shows what a big struggle it is to convince people of their case but it doesn’t meant it is wrong to fight this injustice for 3.8 million people.