Judge backs DWP to deprive tens of thousands of elderly women of extra pensions

Judge Nick Wikeley giving his ” top tips for tribunal representatives on benefit appeals” at a study day.

Pic credit: Twitter

But his judgement admits national insurance is ” institutionally sexist”

Last month Judge Nick Wikeley, an administrative court judge, backed the Department for Work and Pensions to stop the pay out of millions of pounds to the most elderly pensioners in the country just as the ” cost of living crisis” started to hit home.

He took the decision on technical grounds despite his ruling conceding that the national insurance system was ” institutionally sexist” and that the women involved were likely to be the poorest pensioners in the country.

The case has considerable echoes with the one brought by BackTo60 for full restitution for the loss of their pensions after not being given enough notice of the raising of the pension age from 60 to 65.

Hugh Mercer QC Pic credit: Essex Court chambers
jane Russell Pic credit: Essex Court Chambers

It was brought by an 83 year old pensioner just known as Mrs GM with the pro bono backing of two barristers, Hugh Mercer QC and Jane Russell, both from Essex Court chambers. The DWP employed Julian Mitford QC and Ms Naomi Ling, who represented the DWP in the BackTo60 case.

Like all pensions cases it is complicated but also shocking. Her appeal contains a rule change for pension claimants brought in 2008 under Gordon Brown’s Labour administration.

Until 2008 women who claimed their own pension under the old pension system were also entitled to a second pension based on their husband’s NI contributions the moment he retired. But they had to claim it in their own right and the onus fell on the husband to tell them.

Labour changed this archaic system but did not backdate it

From March 2008 Labour changed this archaic system and women automatically received a second pension when their husband retired. But it was not backdated.

Mrs GM is one of those women in the first group. She got her pension in 1998 and her husband retired in 2000. She did not realise she should claim the second pension until 2017 – 17 years later. The DWP awarded her the second pension but only backdated it by one year. She has lost 16 years of her second pension. The pension is worth £82.45 a week.

Her case was she should be entitled to all her lost money =- either to 2008 when the law changed – or on human rights grounds and direct and indirect sex discrimination way back to 2000 when her husband retired.

The hearing turned into a battle between the DWP – which didn’t want to pay it- and human rights lawyers who thought she should be paid.

Sir Steve Webb

Sir Steve Webb, the former Liberal Democrat and coalition pensions minister, weighed in on her side while the DWP produced a star expert witness – Mr Lyndon Walters, a policy advisor to the DWP’s Decision Making and Appeals Team who was familiar with all the detail of the changes.

Sir Steve’s case centred around DWP policy and its failure to inform women properly about pension changes. The judge commented:

“The Webb W/S [Witness Statement] particularises the ways in which women, and especially married women have been, and to some extent still are, disadvantaged by the old system of retirement pensions, and seeks to quantify those affected. There are, with respect, undoubtedly a number of very well-made points in the witness statement, but they are primarily relevant to high level policy considerations. Understandably enough, and despite his distinguished ministerial career, there is much less about the nitty-gritty (or granular) operational issues underpinning the Department’s pragmatic approach.”

Indeed this moved to the heart of the judgement. The judge was more interested in the internal problems the DWP had in paying out pensions than the justice women were entitled to get the pension in the first place.

This showed up in the extraordinary support by the judge for the arguments put forward by Lyndon Walters.

The judge argued: “The Walters W/S makes out a compelling case for why the 2008 amendment took the exact form that it did. Mr Walters explains the general approach taken to encouraging claims for benefits , the practical considerations and rationale behind the introduction of regulation and the difficulties that would have lain in the way of extending the benefit of the 2008 amendment to those married women whose husbands had already become entitled to their Category A pension before that date In particular, he shows how it was that the advent of new IT systems enabled the Department to assess whether the wife of a Category A pension claimant was herself entitled to a Category B pension at the time of his Category A claim without the need for a separate claim being made. This is an informed and authoritative account that outweighs the Webb W/S, which lacks the same level of granular detail.”

Too difficult and expensive for the DWP to compensate the women

Very simply Walters had argued that it was too difficult and expensive for the DWP to inform the women of their rights. “Mr Walters explains, there was no functionality on the system to alert us to those women who were already entitled to have claimed for their category BL pensions but had not done
so” He concludes:

To identify these individuals, we could have run a search, or ‘scan’ in 2008. However, the task of performing such a search and reviewing the records of those identified, then contacting all of these
individuals and dealing with their entitlements would have been a significant additional burden on the Department, when the purpose of the PTP programme was to try to improve the efficiency and productivity of the system.”

The arguments over human rights were dismissed as peripheral – rather like in the 50swomen case the lawyers had argued: this was “unlawful discrimination on grounds of sex to inform a husband of a wife’s rights and then to reproach a wife of not availing herself of her rights”.

But then the judge admits: “Even so, although Mr Mercer did not employ such terminology, the label of institutional sexism may not be out of place in describing the national insurance scheme. This is undoubtedly, the context for the gradual amelioration of the position of women, and especially
married women, in relation to contributory benefits, including provision for their access to Category B pensions.”

And he further admits that it is like that the majority of women who have lost out in that age group could be among the poorest pensioners with the lowest pensions.

Frankly the judge’s decision in this case is remarkably complacent and far too favourable to the DWP. He seems to be more interested in the problems the DWP would have tracing the women than the loss the women have suffered under what was an archaic system. He is also far too complacent about the pace of redress for women who have suffered discrimination. That is another reason why we need to implement the UN Convention against all forms of discrimination against women (CEDAW) in full to stop this leisurely progress to righting centuries of discrimination. There will be hearing in July see the website for more information. This is particularly poignant in this case as the people involved are coming to the end of their lives.

A thank you to one of my readers Jeff Roberts, for drawing attention to this judgement. You can read it in full below.

Click to access UA_2021_001262_RP_CP_317_2021c.pdf

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10 thoughts on “Judge backs DWP to deprive tens of thousands of elderly women of extra pensions

  1. David I have forward an email regarding carers allowance and my pension , if you have any information or comments please let me know.


    Angela Thomson 07789 147039


  2. So, just another case of judges blatantly ignoring the law then as they mostly do…..anybody else would be prosecuted and punished severely I’m sure.


    • how about yep your honour i did rape and murder all those women, but i’ve got a really good excuse and that makes it ok….would that a constitute a legitimate and legal defence also?


  3. I have read many transcripts concerning underpaid pensions, and I would like someone to tell me the following question please :-In the media yesterday it advised us that two people are serving time at her majestys pleasure for robbing people of their pension money to the tune of 11million. Why is it therefore, that the government/DWP are getting away with robbing older pensioners and the 1950s born ladies ??
    Sorry but as far as I’m concerned this is no different to those who have been charged with THEFT, ON A MUCH GREATER SCALE !!!
    One other thing I would like to know is, if the computer software is inadequate to do the tasks needed, why are they not looking to update it so it can carry out the tasks needed ?? Or is this just another cop out ???


  4. Again we are not deemed important enough to be told about something that affects us. I am sure they would have found functionality in the system had we have been overpaid something for a number of years and we would not have gotten away with only paying back 12 months.


  5. Dear David Hencke,
    Steve Webb was the Pension Minister between 2010 and 2015, and every single issue he now flags up, is his fault, as he did not look into them when he had the power over law to solve them directly.

    The Lib Dems party is the worst party in UK history against National Insurance and state pension for women, when in government.

    Over 50s party in government, by the kind votes of especially ladies, would be the greatest Suffragette party in UK history, unravelling discrimination against women, from yet unborn grand-daughter to gran.

    Page: over50sparty.org.uk end-discrimination-against-women


  6. Those who believe this country is a democracy, could not be further from the truth. Those with money and power still use their priviledges to abuse the plebs and believe they have the absolute right to do so when behaving with integrity costs too much. The contributer who describes this as ‘stealing’ is absolutely correct – any private organisation who behaved in such a fashion would be found guilty in a court of law. The judges in recent cases prove they are too far removed from real life and the judicial system should be reviewed so that those with a moral compass serve to try cases and pass judgement. Again, I won’t hold my breath. The level of unfettered dishonesty in all areas of our leadership just depresses me – they’ve probably always been doing it, now we just know more! If we had a good choice, we could vote in a government who would represent decent people. Again, not holding my breath…..


  7. Outrageous and blatant discrimination by a so-called educated judge.

    The lunatics have taken over the asylum..

    Women still chattels…..


  8. This is an outrageous comment to make by a person employed to oversee justice not what just-is.

    The man is an idiot.
    Woman = chattel


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