The claim in court brought on behalf of 1950s women was turned down yesterday. I’ve written up the legal decision in – hopefully – understandable English. But I wanted to start this by saying – again – how furious I am on behalf of 1950s women about the way they’ve been treated.
State pension age challenge
Yesterday’s ruling looked at the legality of the decision to raise the state pension age. But what it didn’t take into account was the effect of successive decisions on 1950s women. I started campaigning against the rise in the state pension age to 66 in 2010, when the coalition government was thinking about speeding up this rise.
The real unfairness is that – over the years – women have not been treated equally in the workplace, and certainly weren’t in the 1970s when 1950s women were starting their careers. We know from statistics that women rely on their state pension more than men, and yet they’re less likely to receive the full amount. Figures from the Chartered Insurance Institute show that a 65-year old woman will have a pension that’s five times smaller than that of a man. You can read about why this is in my article.
What was the claim about?
In the high court in London, two judges dismissed the claim that the government’s decision to raise the state pension age was discriminatory. The claim was rejected on all grounds. The case was brought on behalf of two 1950s women, Julie Delve and Karen Glynn (backed by Back to 60), who wanted a judicial review of the mechanisms chosen by the government to implement the rise in state pension age, and of the failure by the government to tell women that their state pension age was rising.
The case for a judicial review said that the government was guilty of two types of discrimination – on the basis of age and/or sex:
- Age discrimination: This is because the rise in state pension age to 65 (which the Pensions Act of 1995 laid in law) affected women born after April 5th 1950.
- Indirect sex discrimination that is incompatible with EU law.
- Direct discrimination on the basis of sex, or age and sex.
In essence, the claim was that the Pensions Act of 1995, which raised the state pension age to 65 for women, did nothing to ‘equalise’ state pensions for women and men. That’s because the playing field, in terms of employment and pensions, was far from level. By raising the state pension age, the government made these inequalities worse.
Why was the claim turned down?
I’ve read the judgement in full and there are a number of points that it makes. None of these will be any comfort to the millions of women who’ve been affected by the rises in state pension age and the lack of notice.
- The claim that the rise in the state pension age contravenes EU law because it discriminates on the basis of age. The argument against this is that this only applied where a country within the EU was implementing EU law, not where it was implementing its own domestic law. The judges said that because the state pension is not pay, but is a benefit, it is not covered by EU law. The EU’s Equality Directive, which forbids discrimination on the basis of age, doesn’t apply to social security benefits.
- The claim that the rise in the state pension age infringes the European Convention on Human Rights, on the basis that 1950s women were deprived of their state pension on the basis of age or age and gender (they didn’t receive the state pension that women who were older than them received). The judges cited several court cases which they said showed the government was able to introduce changes to the state pension based on age.
- The claim that the government should have paid 1950s women some compensatory pension to make up for the fact they would lose out because of the rise in state pension age. The judges rejected this argument, saying that paying 1950s women compensation would mean that other groups would lose out.
The judgement is obviously much more detailed and complicated, but in very broad terms (and based on my reading of it) those were the reasons why the judges said that age discrimination had not occurred.
- The claim that a particular EU law (the Social Security Directive) says there should be no discrimination on the basis of sex (either directly or indirectly) in the way benefits are calculated, or in the way that people are entitled to benefits. The judges heard evidence from the government’s barrister that another section of this directive specifically excludes the setting of the state pension age. They agreed that the setting of the state pension age was specifically excluded from EU law.
- CEDAW – this stands for the Convention on the Elimination of all forms of Discrimination Against Women. I’ve been reading the judgement information below this section and this is where it gets particularly difficult (for me, at least). One of the statements in the judgement is that the [rise in state pension age] ‘legislation is not to treat women less favourably than men in law; it is to correct a historic direct discrimination against men’. I’m not a lawyer or barrister, but while this may be correct legally, it’s very difficult to read the argument taken in isolation – knowing that so many women born in the 1950s have suffered discrimination in many other areas of their lives – discrimination that has directly affected their retirement savings. The judges acknowledge that these inequalities may be there – but say that the rise in state pension age does not ’cause disadvantage or exacerbate them [these disadvantages]; they were there anyway.’ Goodness – I don’t know how you’re feeling but that’s quite hard to read in black and white…
The judges concluded that the decision to raise the state pension age for women did not amount to discrimination – either directly or indirectly – on the basis of sex or age. They also didn’t think that CEDAW was relevant.
- On the issue of the lack of notice. There’s a long section in the judgement about why successive governments chose to tell women (or not tell them) about the rises in state pension age. The headline seems to be that the judges didn’t think that the publicity campaigns and notification by the government(s) were inadequate or unreasonable. However, even if it had been inadequate, the judges found that the government has no obligation to tell people who are affected by a change in the law, that they’ll be affected by it.
- Delay – the judges noted that it was over 20 years since the Pensions Act was passed. Their view is that even if the claim hadn’t failed for the reasons I’ve explained above, it would have failed because of the delay between the law being passed and the application for a judicial review.
The rise in state pension age – an issue for politicians alone
The judges do say that they were saddened by the stories they read [about the effect of the rises in the state pension age on the women]. However, they believe that the government had the legal right to make the changes to the pension age. Their final words are that it is not for judges to decide whether these rises in state pension age were good or bad, right or wrong – that is something to concern ‘the public’ and MPs.
Changes in the rules on the state pension over the years
Here are some of the points made in the judgement that I think are interesting, starting with those relating to government policy on state pensions over the years:
- In 1940, the state pension age for women was lowered from 65 to 60. The judges said this was an act of discrimination (in favour of women).
- The state pension is a contributory benefit, in that National Insurance money paid by today’s workers pays for today’s pensioners.
- When the government started to think about equalising the state pension age for women and men, it included this statement in its Green Paper of 1991: “There have been immense social and economic changes since these ages were set at their present levels over half a century ago. These changes include the greater willingness of women of all ages and marital status to work, and the spread of part time working. To have differing pension ages now is increasingly out of line with developments in the equal treatment of men and women in the employment field, including in occupational pension schemes.” I’d not read this Green Paper, although I am aware of the assumptions governments made about how women were treated equally in the world of work. The White Paper, which was published in 1993, was even worse. It includes this line: “The difference in state pension ages — 60 for women and 65 for men — is the last glaring inequality in our treatment of men and women.” Quite staggering, to put it mildly. The Pensions Act said that the state pension age would rise from 60 to 65 between 2010 and 2020.
- A White Paper published in 2006 noted that in 2005, just 30% of women would receive a full basic state pension, compared to 85% of men.
- The Pensions Act of 2011 brought forward the rise in the state pension age to 66 to October 2020.
- The Pensions Act of 2014 introduced a new state pension for those reaching state pension age after April 5th 2016.
What happens next?
Backto60 said it was meeting with its legal team to consider the detailed reasons in the judgment to assess “how to progress these pressing issues further within the legal process”.
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