Benefits and discrimination after 60

Issue 197 (April 2007)

Stewart Wright takes a look at recent case law in this area and highlights some areas which remain to be explored.

Introduction

Before the Human Rights Act 1998 came into force on 2 October 2000, virtually all discrimination challenges about benefits for those aged 60 or over had to be brought under EU law, and in particular EC Directive 79/7. That Directive did not allow any challenge to be brought to the differential pensionable ages for men and women, because of the terms of Article 7(1)(a) of that Directive, and most cases turned on whether discrimination in others benefits linked to pensionable age was permitted (as a 'possible consequence thereof') under Article 7(1)(a).

Thus, in Thomas (R(G) 2/94), the European Court of Justice (ECJ) ruled that cutting off invalid carer's allowance and severe disability allowance at pensionable age was unjustified sex discrimination, but, in Graham (R(S) 2/95) and Hepple (R(I) 2/2000), the ECJ ruled that removing invalidity benefit and industrial injuries benefits at pensionable age, although discriminatory between men and women ,was justified. Because the decisions in Graham and Hepple effectively foreclosed most arguments under EU law in respect of the discriminatory effects of the differential pensionable age, recent case law has focused on the human rights arguments.

Pensionable age and the ECHR

The leading case is now Stec and others v United Kingdom (Bulletin 192, p. 13). That effectively involved a rearguing of the Hepple case which had been lost before the ECJ, but this time on the basis that the discriminatory cut-off at pensionable age for reduced earnings allowance was contrary to Article 14 of the European Convention on Human Rights (ECHR).

The Grand Chamber of the European Court of Human Rights (ECtHR), however, also rejected the claim that the discrimination was unlawful and unjustified. It did so by applying long-standing case law that under Article 14 a difference of treatment will be discriminatory if it has no objective and reasonable justification. In assessing this test, the courts must afford the government a margin of appreciation, a margin which will vary according to the circumstances. On the one hand, very weighty reasons are required to justify a difference of treatment based exclusively on a person's sex. But, on the other hand, a wide margin is usually allowed to governments when it comes to general measures of economic or social strategy, because it will have a more direct knowledge of its society and its needs, and so are better placed in principle than the courts to appreciate what is in the public interest on social or economic grounds. In these cases, the ECtHR said that the court should generally respect the legislature's policy choice unless it is manifestly without reasonable foundation.

Viewed from this perspective, the linking discrimination in play in Stec was justified The only way it would not be was if the differential pensionable age itself constituted unjustified discrimination, but in the ECtHR's view it did not. The original justification for the differing age had been that it was a measure to correct the financial inequality of women. Moreover, the change in women's working lives had been a slowly evolving one, and there was no common approach to the fixing of retirement age across contracting states. For all of these reasons, the UK Government could not be criticised for not having started earlier on the road towards a single pensionable age.

This base-line judgment about the justification of the UK pensionable age has been followed in a number of subsequent ECtHR decisions. Thus in Barrow v United Kingdom (Bulletin 194, p14), the ECtHR held that the rule which prevented a woman from continuing to get invalidity benefit beyond the age of 60 (effectively a re-run of the Graham argument) was not unlawful under the ECHR. In Pearson v United Kingdom (Bulletin 194, p. 14), the ECtHR rejected a direct challenge to the UK's differential pensionable age brought by a man, ruling that this had been decisively ruled on by the Grand Chamber in Stec. Lastly, in Walker v United Kingdom (Bulletin 194, p. 14), the ECtHR held that the rule which requires men to pay national insurance contributions while they are working between the ages of 60 and 64, whereas a woman in the same situation would not have to pay such contributions, was justified and not unlawful.

Transsexuals

More claimant-positive results have been reached in respect of transsexuals and the related issue of when pensionable age is reached.

In Grant v United Kingdom, the claimant - who had changed her sex from male to female - was refused a state retirement pension when she claimed it at age 60 and was told she had to wait until she as 65. The ECtHR upheld Ms Grant's complaint that the failure to award her a retirement pension prior to reaching the age of 65 was a breach of her right to respect for her private life under Article 8 of the ECthR. The Court said that its July 2002 judgement in Goodwin v United Kingdom (application no. 28975/95) had found that, from that moment, there was no longer any justification for failing to recognise the change of gender of post-operative transsexuals. Accordingly, Ms Grant was entitled to a state retirement pension as a woman from July 2002 (when she was aged 64), but not before.

More positively, the ECJ ruled, in Richards v Secretary of State for Work and Pensions (R(P) 1/07)), that the refusal of a state retirement pension to Ms Richards at the age of 60 in 2002 on the basis that she had been a man until undergoing gender reassignment surgery in 2001 was contrary to Directive 79/7. Sex discrimination under that Directive covered a right not to be discriminated against arising from gender reassignment, and Ms Richards had therefore been unlawfully refused a state retirement pension at 60. More recently, in CP/3485/2003, a commissioner has decided that that the right to a pension at age 60 applies where the claimant has been living in female role for at least two years but has not yet had the operation to become female. In his view, Richards is not to be confined to cases where the claimant has undergone gender reassignment surgery.

Future challenges

It remains to be seen what impact the Stec line of reasoning may have on the ECtHR's final decisions (in White and Runkee) in respect of widowers' entitlement to an equivalent to the widow's pension.

As for other future challenges, the lack of the lowest rate of the care component and the mobility component of DLA for those who first claim when aged 65 or over (whether male of female) remains to be explored on age discrimination grounds (most obviously under the ECHR), as does the issue of possible indirect sex discrimination in the way in which the amount of the savings credit of pension credit is calculated, given its explicit linkage to the level of the maximum state retirement pension.


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