The High Court of England and Wales has found that legislation which aimed to equalise the pension ages for men and women was not discriminatory against women.
In the Old Age and Widows’ Pension Act 1940, the state pension age for women was lowered from 65 to 60, following a campaign by unmarried women in the 1930s. The Pensions Act 1995 brought the pension age of women back to 65, in accordance with similar requirements for men. The claimants in this case argued that, rather than equalising the position of men, the 1995 Act (and its subsequent legislation in 2007, 2011 and 2014) had the effect of exacerbating existing inequalities, particularly for women born in the 1950s. The claimants therefore challenged the legislation on three grounds; age discrimination, sex discrimination and notice periods.
On the age discrimination ground, the claimants argued that the legislation at issue violated the general principle of non-discrimination under EU law. The Court rejected this as the 1995 act would have had to come within the scope of EU law to be caught by this principle. In the view of the Court, a state pension did not constitute pay within the meaning of the Treaty on the Functioning of the European Union or the Equality Directive, as both of these instruments exclude social security. The claimants also invoked the European Convention on Human Rights and argued that the government’s actions constituted age discrimination under Article 14. The Court also rejected this claim on the basis that the case law of the European Court of Human Rights has confirmed that cases about the timing of a change in law which may disadvantage those on the wrong wide of an age line are not discriminatory.
On the sex discrimination ground, the claimants further argued that the government actions constituted sex discrimination within the meaning of Article 4 of the Social Security Directive, a piece of legislation which prohibits discrimination on the grounds of sex. They argued that the Article 7 of this Directive, which allowed for derogations when determining pensionable age, only applied to discrimination caused by maintaining unequal state pension ages and not discrimination caused by equalising them. The Court rejected this argument and said that Article 7 was not limited in this way.
The claimants also invoked the European Convention on Human Rights and argued that there had been a violation of Article 1 of Protocol 1 (protecting the right to private property), read in conjunction with Article 14 (prohibiting sex discrimination). The Court rejected this argument because there was no evidence of direct or indirect discrimination. Direct discrimination did not arise because they aim of provision was to “to equalise a historic asymmetry between men and women”. Similarly, the Court did not accept an argument of indirect discrimination because indirect discrimination required that a policy aimed at everyone especially affected women. This was not the case here as the legislation was aimed at women specifically. In any case, the Court was of the view that the legislation would be justified because it pursued a legitimate aim.
In their final argument, the claimants argued that they were not given adequate notice of the changes in the pension scheme and they had a legitimate expectation that the government would provide them with such notice. The Court rejected this argument as the government never made any representations to the claimants about such a notice period and had engaged in a wide consultation process on the legislation.
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