Updated:Why the archaic Parliamentary and Health Ombudsman needs a modern make over

Rob Behrens: The Parliamentary and Health Service Ombudsman Pic Credit: Ombudsman’s Office

If you have a complaint about a government department or the National Health Service your last port of call is Rob Behrens, the Parliamentary and Health Service Ombudsman. He is the current post holder of an institution set up 54 years ago by the second reforming Labour government led by Harold Wilson.

A report by MPs today is both critical of the performance of the Ombudsman – particularly over transparency – and of the government for not even considering new legislation to give the Ombudsman fresh powers and bring its work into the 21st century.

The minister blocking any change is Michael Gove, the Cabinet Office minister. He has ruled out any new law that could streamline the operation by combining its work with the local government and social care ombudsmen; give it powers to initiate investigations and strengthen its work dealing with complaints.

Michael Gove: Blocker in chief in making sure the Ombudsman can’t do his job properly Pic credit: BBC

No doubt as one of the country’s leading power couples – Michael Gove and Sarah Vine – are able to use their influence through the current ” chumocracy” to deal with any complaints they might have without having to resort to anybody like the Parliamentary Ombudsman But for ordinary people it is quite different

As the Chair of the Public Administration, and Constitutional Affairs Committee, Tory MP William Wragg MP said:

“The Committee appreciates the pressing priorities facing the Government, including, of course, the current pandemic. But reform of the legislation governing the PHSO is worthy of parliamentary time. The PHSO represents the final stage in a complaints process that can be traumatic for complainants and may include serious matters such as the death of a loved one. It is essential that people have faith in a transparent, effective organisation. The current out-dated legislation undermines this crucial ambition”. 

No action yet on long standing 50s women complaint

This leaves questions about how good Rob Behrens is in doing his job given the current restraints. He is currently looking at whether women born in the 1950s are entitled to any compensation for maladministration for failing to notify them of the raising of the pension age. And he is taking his time about it – despite MPs encouraging and recommending WASPI supporters to follow this route. Indeed the report includes a complaint from Frances Martin:

Her submission said:( I have left the capital letters) “There Is Still No Definitive Time Line For Finalisation, Nor, Importantly Has There Been Any Attempts To Provide An Impact Assessment, Notwithstanding, All Of The Above I Am Without Any State Aid Benefits Since Nov 2015, Am Redundant In A Jobs Blackspot And Have Been Excluded From Financial Assistance Through Rishi Sunak’s Furlough Scheme. As A Woman Of Over 60 Am At Greater Risk With Regard To The Covid Outbreak. None Of These Facts Seem To Have Been Considered By An Organisation Which Purports To Be Fair/Impartial Etc And Certainly Is Not Best Practice In Any Organisation That I Have Worked In Both In The Uk And Overseas.”

Both the MPs and the general public have raised a number of shortcomings. For a start he muddies the waters on the cases he takes up. The MPs report he conflates cases that “are not ready to be taken forward” and “should not be taken forward” so we don’t know what he is doing. He doesn’t report on the number of partial decisions.

He was accused of misleading Parliament by not proactively reporting that you can’t directly compare the figures for the number of cases referred to him over the last two years – because a new digital case system has made it impossible.

Since this blog was published there has been a sharp exchange of views between the Ombudsman and the chair of the committee over whether Rob Behrens misled Parliament by not proactively reporting the number of cases referred to him accurately. Mr Behrens accused the committee of being ” factually inaccurate” in suggesting this. William Wragg, the chairman, stood his ground and said MPs felt there were discrepancies in his evidence and it was important the Ombudsman updated information to MPs in a timely manner. He said that did not mean he was misleading Parliament. Letter exchanges are here and here.

He comes out well in treating people with dignity and respect and listening to their claims. But comes out badly for the time he takes to come to a decision and explaining it to the complainant.

More seriously he doesn’t seem to check back with the complainant that he has got all the information or give them a progress report.

” systemic disability discrimination in the Ombudsman’s office”

The report also contains some very critical comments from the public about the Ombudsman’s handling of some cases. MPs don’t investigate them but attach them to the report.

In one just known as A7 on the death of a disabled child in NHS care the person wrote: “In my and the experience of other parents of disabled children, rather than impartially investigating concerns concerning disabled children, with parity of esteem, investigations seem to be focused on justifying the actions of health professionals, however, unreasonable that behaviour is.”

The person added: “This seems to be a manifestation of the systemic disability discrimination found in poor parts of the NHS spreading to the PHSO office.”

Another from Dr Minh Alexander and Ms Clare Sardari on “a mishandled referral to the Care Quality Commission under Regulation 5 Fit and Proper Person, about an NHS trust director who had been found guilty of proven whistleblower reprisal and breach of the NHS managers code of conduct (an under-declared family interest), who was subsequently convicted of fraud and also criticised for her attempts to resist the proceeds of crime process.”

Ombudsman can’t “deliver accountability and good governance”

They conclude: “There was a lack of rigour by the PHSO in pursuing compliance with its recommendations for corrective action by the CQC, notwithstanding its lack of enforcement powers. It seemed to us that a procedural box had been ticked and thereafter, the PHSO was not interested in enough in ensuring that there was learning or genuine remedy of injustice.”

“We do not consider that the PHSO model is robust enough to deliver accountability and good governance in public life, because of insufficient powers and the lack of a duty on the PHSO to enforce improvements and corrections. It does not seem good value for money (budget 2019-20: £25.942 million) and we ask parliament to consider an alternative model of conflict resolution.”

I could go on with other examples. Suffice to say both Mr Michael Gove and Mr Rob Behrens seem to have a lot of explaining to do. Mr Gove for not bothering to do a thing about updating and strengthening the Ombudsman’s role and Mr Behrens for not being up front with complainants on how he is conducting his investigations.

Dumped at 50: The grim post pandemic warning from statisticians

Amanda Speedie – one of the millions who would like to retire but now also hit by the job crisis caused by Covid 19.

While the headlines concentrate on soaring youth unemployment the biggest rise in jobless totals are among the over 50s.

Figures from the Office for National Statistics analysed by the group, Rest Less, a jobs and community site for the over 50s. reveal unemployment has soared among this group by a staggering 33% year on year – the biggest percentage increase of all age groups and significantly more than the national average increase of 24%.The figures below tell the story.

Other figures shows that those furloughed over 50 who will later lose their jobs will be 80 per cent women. See this research here. And for the group I have championed through BackTo60 – the women born in the 1950s – who are now waiting up to six years to get their pension – the prospect of getting a job even if they wanted one will be worse.

But this is not just a tale about statistics. It is about human beings whose lives are being made more of a misery during this nasty Covid- 19 period.

One of those is Amanda Speedie, a resourceful and articulate 61 year old, who lives in Cornwall over the border from Plymouth. She was one of the women who did not find out until 2011 that she couldn’t retire at 60. She has since been dismayed by the failure of the judges decision on the BackTo60 court case. She had also tried using a local WASPI template to see if she could claim from the Ombudsman but that got nowhere.

She told me: ” When the decision was made it passed me by I was too busy bringing up a family, didn’t read newspapers ands rarely looked at TV news. If they had written to me I would at least have known”.

She is now divorced but well qualified-having worked in a variety of roles from estate agency to medical secretary to customer service and admin roles. She worked at one stage as a shift supervisor of the River Tamar toll plaza.

No full time job since 2012

She hasn’t had a full time job since 2012. She survives on two small private pensions – worth £40 a week – and by taking on some gardening work for which she earns £45 a week.  She occasionally takes on sewing repair and alterations which might bring her in an extra £10 or £20 a week. She doesn’t qualify for any of the government payments.

Her real passion is to become a writer .Amanda studied for a BA in English with Media Studies and graduated with the MA in Professional Writing in 2007.

She has however some very strong views about what women in their 60s should do and that does not include work.

Rishi Sunak: didn’t even reply to letters about 1950s women poverty

” Many women are single, they can’t get jobs and even if they can haven’t the energy to do full time work ( I did a full time job for five weeks and came home exhausted every night and had to give it up) They suffer health issues and lose their energy after the menopause. Older people also face discrimination from employers who are not keen to employ them.”

She has written twice to Rushi Sunak, the Chancellor, suggesting that he introduced an allowance equal to the pension for women in their 60s. She has had no reply.

” Women could then do things they might want to do like volunteering or looking after their grandchildren or take a part time job if they wanted.”

lost generation

What is alarming is that generation born in 1960s are hitting the same problems. Rest Less had another case of a women in her 50s.

Claire Cassell is 54 from Willenhall near Birmingham.  She lives with her husband.  For nearly three years, Claire was working as a receptionist for a legal firm. 

She was furloughed at the beginning of lockdown and didn’t hear anything from her employer until May when she was notified that they were hoping to get back to work soon. 

By July she hadn’t heard anything more and texted her boss to find out if they were going back to work.  He simply replied ‘No’. 

At the end of August, she received an email telling her her role was at risk of redundancy.  She was made redundant on 1 September.  She is entitled to Job Seeker’s Allowance until March but as her husband works, she cannot claim Universal Credit.
Since then, Claire has applied for 200 jobs and has had two disastrous Zoom interviews.  She says she has a lot to give an employer and has 12 years of work still in front of her.

What this suggests is life is going to get much harder for the middle aged – who might have to face a decade or more of impoverished lives – before they get their pension. The government’s solution is to raise the age before you can get a state pension to 67 and then 68, and some pressure groups like Iain Duncan Smith’s Centre for Policy Studies would like it to be 75 asap – knowing he as an ex minister and his wife will retire on a huge state pension provided by Parliament and Whitehall.

Search for Justice: New Podcast on the 50s women struggle for their delayed pensions

BackTo60 at the Royal Courts of Justice before the pandemic set in. They are now applying to appeal to the Supreme Court after losing their judicial review

I have given a long interview to Dave Niven, one of the country’s leading figures on the safeguarding of children, for socialworldpodcast on the issue of justice for the 50swomen. This podcast is aimed at the social work and caring professions and is watched by 2000 people in the field.

Dave contacted me after a gap of over 20 years because he had seen my writing on the plight of the 50s born women and wanted me to do an interview for his podcast. We last collaborated on a story in the 1990s when I was on The Guardian though both of us can’t remember what the story was exactly about.

He now runs his own consultancy, David Niven Associates (info@dnivenassociates.co.uk) which provides media training, and consultancy on child protection and safeguarding.

The podcast can be listened to here. That is the link to his site where you will also find other podcasts.

regular series of podcasts

It is part of a regular series of weekly podcasts on Thoughts on the Social World. Previous people who have been interviewed include Jim Gamble, a former national policing lead for child protection and the architect and CEO of the UK Child Exploitation and Online Protection (CEOP) Centre. He is now  CEO of the INEQE Safeguarding Group. http://www.ineqe.com

He also recently interviewed Christopher Lamb, a former Australian ambassador and chief diplomat with the International Federation of Red Cross and Red Crescent Societies (IFRC) in Geneva. He is now an adviser.to IFRC and the Australian Red Cross.

My own interview covers the case I have made on my blog for justice and proper equality for the 50swomen. I also talk about the exposures I did on The Guardian which led to the resignation of Tory ministers Neil Hamilton and Tim Smith over the “cash for questions” scandal in the 1990s and the first resignation of Peter Mandelson from the Labour government over his hidden ” home loan” to buy a posh pad in Notting Hill. And also my award winning story on how the former head of the Student Loans Company devised a scheme for legitimate tax avoidance which led to the government discovering that they had 2500 civil servants doing the same thing.

Revealed: Dramatic rise in benefit and disability claims from women born in the 1950s

Disclosure undermines ministry claim of no link between poverty and bad health and loss of state pension

DWP case undermined by new figures


Days after the Court of Appeal rejected the judicial review brought by the BackTo60 campaigners the House of Commons library produced a set of previously undisclosed figures showing huge leaps in the numbers of 50sborn women claiming universal credit[UC] or Jobseekers allowance[JSA] and employment and support allowance [ESA].

Claims for UC and JSA – which of course were non existent when the pension age was 60 – have gone up by an average of 382 per cent between 2013 and 2019. The figures are still relatively low (from 7582 to 36,531) but the trend is overwhelmingly upwards. It also excludes those who are battling on or using up savings rather than claim.

Claims for ESA – a difficult benefit to claim unless you are hospitalised and involving a 25 page questionnaire and work capacity assessment – have soared by 185 percent – to reach 205,385 -over the same six year period.

The figures are bound to be a huge underestimate as they take no account of the rule change that allowed people to claim the benefits if they had to stay at home because of Covid 19 this year. But they do allow a direct comparison during the period when the only big material change for this group of women was the loss of their state pension.

The disclosure of these figures -obviously not available at the time of the hearing – does undermine the forceful case made by Sir James Eadie, QC, who represented the Department of Work and Pensions, that any poverty or ill health suffered by these women could not be linked to the rise in the pension age to 66.

They also back up the argument made by Mr Mansfield who is quoted in the judgement:
” It is not uncommon for women born in the 1950s to have contracted various ailments and health problems by the time they reach their early 60s, because of the environment they lived in during their early years.  He said further that it is common for women in this age group to be living in straitened circumstances particularly if they are now single, with part time jobs at best and working for low pay. 

” It is also very common for them to be caring for elderly and infirm parents.  He argued that the lack of state pension means that they have to resort to makeshift measures to make ends meet, selling their houses, using up their savings and cutting back on any non-essential spending so that they are not in a position to enjoy their retirement years.”

But the judges concluded: ” 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, if that criterion is not more difficult for the group with the protected characteristic to satisfy.”

The figures also provide a useful constituency by constituency breakdown – showing an unequal distribution of the misery caused by ill health and failure to get as job depending on where you live. The guide would provide a very useful campaigning tool if people wish to lobby their MP over the bad treatment of 50s born women over their loss of pensions – as they can quote the figures back at their MP.

These are some of the top increases and the names of the MPs who were elected at the last election.

Unemployment biggest percentage constituency rises

Knowsley 1388 pc rise from 8 to 119 George Howarth ( Lab)

Newcastle North 1347 pc rise from 6 to 88 Catherine McKinnell (Lab)

Morecombe and Lunesdale 1300 pc rise from 6 to 84 David Morris (Con)

Birmingham Yardley 1270 pc rise from 10 to 137 Jess Phillips (Lab)

Wells 1220 per cent rise from 5 to 66 James Heappey (Con)

Disabled and ESA biggest constituency percentage rises

Glasgow North East 315 pc rise from 214 to 889 Anne McLaughlin (SNP)

NE Hampshire 300 pc rise from 32 to 128 Ranil Jayawardena (Con)

Linlithgow and East Falkirk 292pc rise 149 to 584 Martyn Day (SNP)

Brecon and Radnorshire 292 pc rise from 77 to 302 Fay Jones (Con)

Leeds NE 291pc rise from 89 to348 Fabian Hamilton (Lab)

Glasgow SW 287pc rise from 205 to 794 Chris Stephens (SNP)

Interestingly Martyn Day is the one MP who challenged Boris Johnson about the court judgement at Prime Minister’s Questions on Wednesday.

The full report is available here. You need to download the table on working age benefits 2020 to get all the info on the big increases in payments. There is also an up to date breakdown of the numbers of 50sborn women living in individual constituencies.

So again we yet have another disclosure backing up the case for the 50swomen to get their pensions.

50s Women to apply directly to Supreme Court to ask them to hear pensions case

Supreme Court; Pic Credit:BBC News

Lawyers for Backto60 and the two complainants decided today to apply to the Supreme Court for permission to bring their case to the highest court in the UK.

The decision was taken after two of the Judges in the Court of Appeal, who heard their case,  Lord Justice Sir Nicholas Underhill and Lady Justice Dame Vivien Rose, refused permission for them to go to the Supreme Court.

Applicants are allowed to go to the Supreme Court directly to plead their case to be heard if they are turned down by the Court of Appeal.

The decision was announced by Joanne Welch, the founder of Back to 60, appropriately during an interview with the BBC radio programme Woman’s Hour.

The decision comes after the Court of Appeal comprehensively rejected their case in a judgement announced on Tuesday. The judges ruled that the first judge , Ms Justice Lang, should not have allowed the judicial review to go ahead because it was a long time after the 1995 Act raising the pension age for women was passed. They agreed with the arguments put forward by Sir James Eadie, the Treasury Counsel, on behalf of the Department for Work and Pensions that they had been adequately consulted about the rise in the pension age from 60 to 65 announced in 1995 and later extended to 66 under the Pensions Act in 2011.

Some 3.8 million women were affected by the change which Michael Mansfield, Henrietta Hill and Adam Straw, argued amounted to both direct and indirect age and sex discrimination and had led to women born in the 1950s being driven into poverty and ill health. This was rejected by the judge, chaired by Sir Terence Etherton, Master of the Rolls.

Joanne Welch told Woman’s Hour “I know that Julie Delve and Karen Glynn have been actively considering next steps. I believe that they are going to go ahead with an application for permission to have this heard in the Supreme Court”.

Plans to ask the Supreme Court to hear the case are now being drawn up by the legal team after Joanne Welch confirmed that the decision was taken at a meeting today.

50s women pension judgement: How the Court of Appeal rejected their case

Sir Terence Etherton, Master of the Rolls

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.

Judgement on Court of Appeal for 50s born women pensions fixed for September 15

Royal Courts of Justice

The Court of Appeal has announced that the long awaited judgement on the Backto60 case covering 3.8 million women who had to wait up to six years for their delayed pension will be made on September 15.

The judgement will be delivered by email to the two claimants on behalf of BackTo60 campaign and the Department for Work and Pensions. The judgement will be put on the judiciary website.

The official notice published today reads:

NOTICE
Take notice that on TUESDAY, 15 SEPTEMBER, 2020 at 10.30, Judgment will be given in the following.
APPEAL

From The Queen’s Bench Division
(Administrative Court and Divisional Court)
FINAL DECISIONS
C1/2019/2914 The Queen on the application of Delve & Anr -v- The Secretary of State for Work and Pensions.

Covid-19 Protocol:  This judgment will be handed down remotely by circulation to the parties or their representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down will be deemed to be TUESDAY, 15 SEPTEMBER, 2020 at 10.30.

A copy of the judgment in final form as handed down should be available on the Judiciary website (www.judiciary.uk) or BAILII shortly thereafter but can otherwise be obtained on request by email to the Judicial Office.

The decision will be on the merits of whether the DWP handled the policy change properly and whether the women suffered discrimination not on the merits of the plight of the women.

If the judges decide that there were faults in the system the women will have won and be entitled to compensation. If they decide that the DWP acted properly within the law they will lose.

The case has received the attention of three of the most powerful judges in the Court of Appeal.

Sir Terence Etherton, Master of the Rolls

They are the Master of the Rolls, 69 year old Sir Terence Etherton; Lord Justice Sir Nicholas Underhill, 68, and Lady Justice Dame Vivien Rose,60.

The DWP engaged Sir James Eadie known as the ” Treasury devil” – one of the most powerful lawyers employed by the government, to argue their case.

Michael Mansfield

BackTo60 brought in Michael Mansfield, one of the leading human rights lawyers as part of their team.

Exclusive: Now 9.8 million men over 60 had their national insurance contributions paid by the state

The revised DWP answer

Revised figure doubled for ” men only national insurance subsidy”

The Department for Work and Pensions has revised the estimated number of men over 60 who received what are known as ” auto credits” towards getting a full pension from 4.65m to 9.8m between 1983 and 2018.

The 4.65 million figure was already staggeringly high but the new figure is more than double the number previously disclosed. It is also well over double the number of 1950s born women who are currently waiting for their pension for up to six years.

The scale of the payments has been kept quiet by the Department for Work and Pensions for 37 years. It was only revealed last month when Myfanwy Opeldus, one of 3.8 million women facing now a six year delay to get her pension, got the admission from the ministry through a Freedom of Information request. 

Letter issued after court hearing

Yesterday the Department for Work and Pensions wrote to her again raising the figure to 9.8 million. The letter came just after the Court of Appeal hearing into the judicial review this week heard about the plight of women affected by the rise in the pension age and was told by Michael Mansfield about the men receiving ” auto credits” which was not known at the time of the first judicial review.

The new disclosure makes it even more galling for the women who were originally promised they would have their national insurance contributions paid between 2010 and 2018 only to have the offer withdrawn a year before it was due to start. A number have had to pay thousands of pounds to make up the sum for a full pension while others simply have not been able to afford it.

The letter does say that not all 9.8 million men would have benefited as some would have died, others would have full insurance records and some would have been working abroad.

enormous subsidy for men

Nevertheless the scale of the subsidy must be enormous and a benefit for people years after it was offered by Sir Geoffrey Howe, the Chancellor of Exchequer in 1983, to encourage men to get off the dole to keep the very high unemployment numbers down at the time.

This story seems to get worse and worse so let us hope there will some justice from the courts for all the women concerned.

50 women’s pensions: An extraordinary Judicial Review Appeal hearing

The Master of the Rolls, Sir Terence Etherton Pic credit Wikipedia

Judges are inscrutable. Like wise old owls you can never be sure what they are thinking. This week’s two day hearing of the Court of Appeal into the rejected judicial review on behalf of 3.8 million women born in the 1950s who saw their pension age rise from 60 to 66 was no exception.

However the proceedings were extraordinary for a number of reasons. For a start the introduction of new technology clashed with the traditional proceedings of the courts.

Hit by Covid 19, the Court of Appeal decided that ” public interest ” in the case was so great that it should be live streamed with some of the judges and lawyers contributing via video link. They were justified with audiences over 2000 peaking at one point to just below 4000 – Court No 71 could never hold anything near that number ever, Covid 19 or not. Now two days later it has been seen by over 16,000 people.

For the first day it worked. But during the second day it ran into a number of technical problems -including cutting people off. And at the very end of the day the technology fizzled out for me so I didn’t see the very last part of the hearing . I have now seen it and Michael Mansfield makes a strong defence of why 50s women have been so badly affected by the delay in the pension age, citing one case where a woman contemplated suicide. He also emphasised the failure to notify people properly, saying there was a common law duty to do so.

Henrietta Hill was questioned by the judges about indirect and direct sex and age discrimination and how the lawyers saw their case being applied.

The judges reserved judgement which means it could be a few months before there is a decision.

Judges were engaged

The three judges presiding over the hearing were engaged with the debate.. The Master of the Rolls, 69 year old Sir Terence Etherton, is also president of the Property Bar Association and chairman of the Trust Law Committee and a visiting professor at Birkbeck College. In his youth he was a fencer and a member of the GB International Fencing Team, including being selected for the 1980 Olympics in Moscow.

Lord Justice Sir Nicholas Underhill Pic credit: Judiciary website

Lord Justice Sir Nicholas Underhill, 68, is a former president of the Employment Appeal Tribunal so well versed in complex cases. He also is a former Attorney General to the Prince of Wales.

Lady Justice Dame Vivien Rose Pic credit: judiciary website

Lady Justice Dame Vivien Rose,60, is the most recently appointed appeal judge of the three, is an expert in EU and UK competition law, tax, has been a Treasury legal adviser and held a post in the Ministry of Defence as Director of Operations and International Humanitarian Law during the Gulf War. Unlike the other two judges, who were educated at public schools, she was educated at a London comprehensive school and is the first lawyer in her family. She also sings in a choir.

Sir James Eadie : Pic Credit: blackstonechambers.com

Given this expertise of the judges it was extraordinary that Sir James Eadie, QC, the Treasury First Counsel, nicknamed the ” Treasury devil” should try to get the Judicial review declared unlawful.

He was building on the questioning in the previous judicial review which raised whether Ms Justice Dame Beverley Lang was right in granting the judicial review for the 3.8 million women in the first place.

He was shot down with a rapier like comment from the Master of the Rolls who pointed out he could have raised this immediately after her judgement at a special hearing and again when the judicial review was heard.

” Not in my brief” -Sir James Eadie

His reply was “it was not in my brief from the DWP ” and talked about ” the bigger picture”. My interpretation of that is Amber Rudd, then works and pensions secretary, would have been well aware that to strike out a review for 3.8 million women would have been political dynamite and caused widespread furore well beyond the actual case.

But Sir James persisted citing judgments which said that the case could have been held in 1995 as soon as the Pension Act was passed. Michael Mansfield,QC dealt with that claim in his summing up.

What is important is that the judges were really engaged with the arguments and tested both sides equally. They looked at the notification ( or non) notification issue of the pension age rise, listened to the arguments involving EU law and the relevance of the UN Convention of the Elimination of Discrimination Against Women and noted the auto credits issue which allowed 4.6 million men over 60 from 1983 to 2018 to have their national insurance contributions paid by the state.

Sir James Eadie’s tactics seem to be to try and get most of the case law raised by Adam Straw and Henrietta Hill for the 50swomen ruled as irrelevant.

At one point the Master of the Rolls intervened to point out to Sir James that Adam Straw’s argument about one particular case was aimed at making a specific legal point not about the content of the case.

The other DWP tactic was to use out of date information. Sir James used 2011 as the reference for the continuing rise in longevity ( and pension payment costs) – the high point of the increase – ignoring it flatlining since. This I gather was corrected by Michael Mansfield later.

Sir James also got it wrong when he said the purpose of the case was to reduce the pension age to 60 for all women. It isn’t. It is to fully compensate the 3.8 million women who feel cheated about waiting six years for a pension and not being properly told about the change.

The DWP switched tactics over the economic plight of the 1950s women – in the original judicial review he made great play of the fact they were not worse off but some were well off.

This time he acknowledged that 1950s women faced economic disadvantages and social ills but these, he argued, were nothing to do with the raising of the pension age.

For people watching this case it must have seemed a bit arcane that it is based on case law rather than – though Michael Mansfield did highlight their catastrophic plight – going into detail of the hardships of 50swomen. Full statements on the hardships faced by the two women cited in the case were passed to the judges by Michael Mansfield.

judgement time

Now for a judgment. The point of a judicial review is to question the administration of a policy to see if it was fit for purpose and had not disadvantaged people.

Therefore don’t expect a judgement ordering the women must have all the money. But you could expect a judgement saying the system cheated them which will have to lead to action by the government to redress the matter.

Either way win or lose the BackTo60 campaign will be considerably enhanced by the outcome of this case – because it highlights the women’s plight and will be a force to reckon with. Going to law is much more powerful than trying to persuade MPs.

After all very few campaigners can claim to have their case examined by the Master of the Rolls and I know BackTo60 lawyers are delighted that they got an appeal on all the points they raised in the first judicial review.

Government concede victory to unions over pension discrimination for over 4.1 million public sector workers

Stephen Barclay, chief secretary to the Treasury. Pic Credit: gov.uk

Judicial review forces ministers to open negotiations and defer major changes to pension schemes until 2022

Steve Barclay, Chief Secretary to the Treasury,chose a heavy news day today to slip out an announcement that the Treasury had finally given way to the courts and dropped pension discrimination against 4.1 million workers in Whitehall, the NHS,teachers, prison officers and firefighters and ambulance staff .

This came after losing legal battles to the FBU firefighters union, the GMB, the PCS Whitehall union and the Prison Officers Association over what was seen as age discrimination over cuts to their workplace pensions.

The announcement means that terms offered to staff will revert back to the original position – and that includes a lower retirement age – until 2022 and everything is up to grabs during fresh consultations.

£2.4 billion in pension surpluses

It could also mean that some £2.4 billion at present held in pension surpluses, particularly in Whitehall, may have to be redistributed back to the workers in reduced pension contributions or better benefits.

The sting in the tail is that the government want the costs of the victory won by the FBU at the Court of Appeal – which scrapped a discriminatory system that put younger people employed at a disadvantage – should be taken out of the pension surpluses.

The story of the FBU victory appeared in an article in December on this blog.

Any such moves are to be fiercely resisted by the unions. As one GMB official put it: ” We are not going to accept we should pay when we won the argument and the government lost.”

“They knew they were wrong”

Rehana Azam, GMB National Secretary said: 

“It’s welcome that Ministers have in the face of sustained pressure finally U-turned on the pause they imposed on the drawing down of pension benefits. Their indefensible decision has left public sector workers facing financial hardship. 

“GMB has long campaigned for the lifting of the benefits pause the Government unilaterally imposed on our members without consultation. Hard-working public sector workers should now get what they’re owed. 

“The Government has had to make a U-turn because they knew they were in the wrong and were poised to lose the Judicial Review GMB and others had brought against them.  

“Any suggestion that it should now be public sector workers who now bear the costs of Ministers’ discriminatory errors will be fiercely resisted. GMB will not stand by if the Government intends to break its word and force public servants to pick up the bill for its own mistakes. “

The timing of the climb down is interesting as it comes a week before the court of appeal hears the case against raising the pension age from 60 to 66 without proper notice brought by BackTo60 on behalf of 3.8 million women demanding full restitutionb for the loswt money.

The GMB which led the charge over part of the fight is 100 per cent behind the 50swomen and their cause to get their money back.