Court of Appeal: Sir Terence Etherton MR, Underhill VP and Rose LJ, [2020] EWCA Civ 1199, 19 September 2020

The Court of Appeal refused an appeal against the dismissal of a challenge to increases in women’s state pensionable age. The decision is noteworthy for its narrow approach to indirect discrimination, though the Court of Appeal did adopt a more generous approach to comparators than the Divisional Court had done and left open the argument that the MWRF approach to justification has been incorrectly applied by the domestic courts. (Note that the decision in R (DA & Ors) v Secretary of State for Works and Pensions [2019] UKSC 21, [2020] 1 All ER 573 has been superseded by that in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see later post), though there is no reason to think that the outcome of this case would have been different if it had postdated SC).

The appeal was brought against a decision of the Divisional Court rejecting a challenge to changes made by a series of Pensions Acts between 1995 and 2014 to state pensionable ages the effect of which was to equalise women’s and men’s state pensionable age at 68 (up from 60 and 65 respectively). The effect of successive changes was to place women born at various times at particular disadvantage in that they had to accommodate significant increases in pensionable age with limited opportunity to mitigate the impact of the changes.

The claimants, two women born in the 1950s whose pensionable age had been increased from 60 to 66, argued that the equalisation of men’s and women’s pensionable ages had outstripped improvements in the economic position of women in their age group who had not been treated equally with men during their working lives and were, as a result, poorer in their early 60s than were men. They claimed that the changes gave rise to direct age discrimination and indirect sex and/or combined sex and age contrary to Article 14 and A1P1, and to direct age and indirect sex discrimination contrary to EU law. They also claimed that the Secretary of State had failed in her duty to notify them far enough in advance of the fact that they would not, as they expected, start receiving their pension at age 60.

The Divisional Court ruled that state pension did not come within the ambit of EU law regulating age discrimination, state pensions further being excluded from the scope of the Equality Directive by Article 3(3) of that Directive. It ruled that the claimants could not compare themselves, for the purposes of the Article 14 age discrimination claim, to women born before them, who were subject to a different legislative regime. In any event, the Divisional Court was satisfied that any discrimination between women of different ages was not MWRF. As regards sex discrimination, the Court ruled that the EU claim was precluded by Article 7(1)(a) of Council Directive 79/7/EEC (the Social Security Directive) which permits Member States to exclude the determination of pensionable age from its scope. Nor, the Court ruled, could the removal of an advantage that had previously existed in favour of women amount to direct discrimination contrary on grounds of sex, or sex and age, contrary to Article 14. There was no indirect discrimination for the purposes of Article 14 because there was no causal link between the measures and the disadvantages accruing to women or to women in this age group and, again, the measures were not MWRF. Finally, the Divisional Court rejected the claim that the claimants should have been given more notice of the changes and ruled that the challenge to the changes imposed by the Pension Act 1995 were over 20 years out of time.

The claimants appealed the Divisional Court’s findings on Article 14 and its decision on indirect (but not direct) discrimination under EU law. The Court of Appeal ruled as follows (this note being concerned only with the discrimination arguments):

As regards the age discrimination claim under Article 14

The argument put for the Secretary of State that the claimants could not compare their treatment with that afforded older women was not accepted, the Court pointing out that the women were discriminated against not only by reason of falling within a different legislative regime, but also because of their dates of birth, which amounted to a “distinguishing criterion based on the[ir] personal status”. Having said this, the Court applied the MWRF for justification and found that there was “no basis for impugning the Divisional Court’s conclusion that the legislation equalising and then raising the state pension age was justified. The Divisional Court were right to approach the issue on the basis that this legislation operates in a field of macro-economic policy where the decision-making power of Parliament is very great” and that general rules such as Parliament was entitled to make would always have the effect that hard cases would arise. The Court of Appeal made reference to the evidence of increased rates of female employment and life expectancy, the international trend towards increasing and equalising state pension ages, the need for Britain to maintain international competitiveness and the increased availability of occupational pensions with equal pensionable ages.

As regards the claim of indirect sex or combined sex and age discrimination under EU law

The prohibition on sex discrimination in Article 4 of the Social Security Directive is (Article 7(1)) “without prejudice to the right of Member States to exclude from its scope (a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits”. The claimants’ argument that Article 7 permitted only legislation which temporarily set different state pension ages for men and women was rejected.

As regards the claim of indirect sex or combined sex and age discrimination under Article 14

It was clear from the decision of the Supreme Court in Essop & Ors v Home Office (UK Border Agency) [2017] UKSC 27, [2017] 1 WLR 1343 that indirect discrimination did not require a causal link between the less favourable treatment and the protected characteristic, as distinct from between the measure and the particular disadvantage suffered by the group and the individual. The claimants argued that they were disadvantaged by comparison with men aged between 60 to 66 who, although they were equally ineligible for a pension, and had suffered an increase in pension age (albeit only from 65 to 66), were better able to able to bear that lack of a pension between than were women in the same age group. They sought to rely on the dicta of the ECtHR in JD & A v United Kingdom (App no. 32949/17) [2020] HLR 5 that “indirect discrimination prohibited under art. 14 may arise under circumstances where a policy or measure produces a particularly prejudicial impact on certain persons as a result of a protected ground, such as gender or disability, attaching to this situation”. The Court of Appeal stated at §79 that this attempted reliance on JD would amount to “a significant expansion of the law” and that not “every measure that has that kind of prejudicial effect on a disadvantaged group in society amounts to unlawful discrimination entitling that group to more favourable treatment unless the measure can be justified”. If the Divisional Court had suggested (at §73) that “where the disadvantage suffered by those with a protected characteristic arises from traditions and cultural norms, it does not deserve protection, then we respectfully disagree. Such a conclusion would make a very substantial inroad into the application of anti-discrimination legislation”. But it appeared that the Divisional Court was:

“81 … seeking to express  … that there is no sufficient causal link between the measure and the disadvantage suffered by the women in this case. Even the broad test expressed at [85] of JD and A still states that indirect discrimination exists where a policy or measure produces a particularly prejudicial impact on certain persons as a result of a protected ground, such as gender or disability, attaching to the situation. The Appellants’ argument is that the causal link between the withdrawal of the pension and the protected characteristic is established because (i) the availability of the pension matters more for the wellbeing of disadvantaged members of society than it does for better off people, and (ii) people with a protected characteristic are disproportionately represented in the cohort of disadvantaged people, therefore (iii) it is indirectly discriminatory to deprive them of that benefit even though (iv) the criterion for access to that benefit is equally capable of being satisfied by people with and without that protected characteristic.

82.We do not accept that the causal link needed to establish a claim of indirect discrimination can be satisfied by that chain of reasoning. If it were, then there may well be other groups with a different protected characteristic combined with age who can also show that because they have suffered disadvantage in the work place over the course of their lives, they are more reliant on a state pension than comparator groups and so were adversely affected to a greater degree by the increases in pension age since 1995. To say that it is unlawful not to provide a state pension to every such group would turn the state pension into something which it is not; another means-tested benefit. The state pension is not a means-tested benefit but is linked to payments of national insurance contributions over the course of the claimant’s working life. There are other benefits provided which are means-tested, such as universal credit for those below the state pension age and pension credit for those above. These are the benefits designed to achieve a minimum level of income for poorer people; that is not the function of the state pension.

83. In our judgment, therefore, 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 Court went on to rule that any indirect discrimination would in any event have been justified on the MWRF approach, rejecting the claimants’ attempt to rely on the decision of the ECtHR in JD and A because (§88) the Court of Appeal was “bound by the Supreme Court’s decision in DA see e.g. R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, [2021] 1 WLR 1151, and “the situation here is precisely the situation that the ECtHR referred to in JD and A as the situation where the MWRF test does apply, namely the effect of transitional measures to correct historical inequalities. This case does not therefore present either the opportunity or the challenge of deciding whether the MWRF test applies outside the scope of welfare benefits or as to the effect of JD and A on the Supreme Court’s decision in DA”.

 

Claimants: Michael Mansfield QC, Henrietta Hill QC, Adam Straw and Keina Yoshida, instructed by
Birnberg Peirce Solicitors

Defendant: James Eadie QC and Julian Milford QC, instructed by The Treasury Solicitor

post modified 15 January 2021