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.

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.