QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and -
|(1) LONDON BOROUGH OF HARINGEY
(2) SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT
James Cornwell (instructed by Borough Solicitor) for the First Defendant
Julian Milford and Christopher Knight (instructed by GLD) for the Second Defendant
Hearing dates: 26 and 27 June 2018
Crown Copyright ©
The Honourable Mr Justice Julian Knowles:
The facts in outline
"Unfortunately for a co-habiting partner to be entitled to receive a survivor's pension, the member must have paid into the LGPS on or after 1 April 2008. The late Mr Roe left the LGPS on 27 October 2003; therefore there is no spouse pension entitlement (sic)."
a. Spouses of persons whose active membership of the LGPS ceased before 1 April 2008 ('Pre-2008 Spouses');
b. Unmarried persons who cohabit with partners who remained active members of the LGPS on or after 1 April 2008 ('Post-2008 Cohabitees').
a. The Claimant is not in a relevantly similar position to either of the classes of person to whom she compares herself, and because that is a pre-requisite of an Article 14 claim, the Claimant's case fails at the outset.
b. The Claimant's age based complaint is without substance, in that the LGPS does not define benefits by reference to age. It is not indirect age discrimination for a pension scheme to be revised prospectively with effect from a certain date.
c. In any event, any difference in treatment has an objective and reasonable justification.
The LGPS and the statutory framework
(i) The SA 1972
"Superannuation of persons employed in local government service, etc.
(1) The Secretary of State may by regulations make provision with respect to the pensions, allowances or gratuities which, subject to the fulfilment of such requirements and conditions as may be prescribed by the regulations, are to be, or may be, paid to or in respect of such persons, or classes of persons, as may be so prescribed, being—
(a) persons, or classes of persons, employed in local government service; and
(b) other persons, or classes of persons, for whom it is appropriate, in the opinion of the Secretary of State, to provide pensions, allowances or gratuities under the regulations."
"12 Further provisions as to regulations.
(1) Any regulations made under section 7, 8(2), 9 or 10 of this Act may be framed so as to have effect as from a date earlier than the making of the regulations.
(2) Subject to subsection (4) below, any regulations made under section 7, 9 or 10 of this Act may be framed—
(a) so as to apply in relation to the pensions which are being paid or may become payable under the regulations to or in respect of persons who, having served in an employment or office service in which qualifies persons to participate in the benefits for which the regulations provide, have ceased to serve therein (whether or not they have subsequently recommenced any such service) or died before the regulations come into operation; or
(b) so as to require or authorise the payment of pensions to or in respect of such persons."
(ii) The 1997 Scheme
"Surviving spouse's short-term pension
40(1) If an active or pensioner member dies leaving a surviving spouse, the spouse is entitled to a short-term pension.
(2) It is payable for three months after the member's death…
(5) Where the deceased was a pensioner member, the short-term pension is equal to his retirement pension immediately before death…
Surviving spouse's long-term pension
41(1) If a member dies leaving a surviving spouse, the spouse is entitled to a spouse's long-term pension.
(2) If the deceased was an active or pensioner member, the long-term pension is payable from the end of the period for which the short-term pension is payable.
(3) The long-term pension payable on a deferred member's death is payable from his death…
(6) If the deceased was a pensioner member, the long-term pension is equal to half of his retirement pension immediately before the date of death…"
(iii) The 2008 Scheme
"Survivor benefits: pensioners
36(1) If a pensioner member dies leaving a surviving spouse, nominated cohabiting partner or civil partner, that person is entitled to a pension, which shall come into payment on the day following death.
(2) The pension is calculated by multiplying his total membership by his final salary and divided by 160.
(3) If there is more than one surviving spouse, they become jointly entitled in equal shares under paragraph (1)."
"Meaning of 'nominated cohabiting partner'
25(1) "Nominated cohabiting partner" means a person nominated by a member in accordance with the terms of this regulation.
(2) A member (A) may nominate another person (B) to receive benefits under the Scheme by giving to his administering authority a declaration signed by both A and B that the condition in paragraph (3) is satisfied for a continuous period of at least 2 years which includes the day on which the declaration is signed.
(3) The condition is that-
(a) A is able to marry, or form a civil partnership, with B,
(b) A and B are living together as if they were husband and wife or as if they were civil partners,
(c) neither A nor B is living with a third person as if they were husband and wife or as if they were civil partners, and
(d) either B is financially dependent on A or A and B are financially interdependent …
(8) In this regulation, "member" means an active member or a former active member who has become a deferred or pensioner member in accordance with these Regulations."
"Membership accrued before 1st April 2008: active members
3.—(1) This regulation applies to a person who was an active member of the 1997 Scheme and becomes a member of the Scheme by virtue of regulation 2 of the Benefits Regulations [ie, by remaining in LGPS employment on 1 April 2008].
(2) Notwithstanding the revocations effected by regulation 2, the regulations listed in the Schedule continue to have effect, subject to regulation 4, so far as is necessary so that—
(a) The person's total membership accrued in the 1997 Scheme in respect of, or calculated by reference to, his service before 1st April 2008, and the pension rights accrued at that date, are preserved; and
(b) his benefits under the 1997 Scheme are payable immediately where benefits become payable without reduction under regulations 16, 17, 19 and 20 of the Benefits Regulations, or with the appropriate actuarial reduction in line with guidance produced by the Government Actuary where benefits become payable under regulations 18 or 30 of the Benefits Regulations.
(3) But his pay, for the purposes of any calculation of benefits under paragraph (2), is calculated in accordance with regulations 8 to 11 of the Benefits Regulations.
(4) And, for the purposes of regulations 24, 33 or 36 of the Benefits Regulations as they apply to nominated cohabiting partners or civil partners, only periods of membership after 5th April 1988 are to be taken into account.
Membership accrued before 1st April 2008: deferred members
4. (1) This regulation applies to a person—
(a) who was a deferred member of the 1997 Scheme;
(b) who becomes a member of the Scheme by virtue of regulation 13 of the Administration Regulations [ie, by becoming an LGPS employee again after 1 April 2008]; and
(c) whose preserved benefits under the 1997 Scheme have not yet come into payment.
(2) He may choose, by notice in writing to the appropriate administering authority within 12 months of becoming a member of the Scheme under paragraph (1)(b), to be treated as if regulation 3 applied."
6(1) Subject to paragraphs 2 and 3, any survivor benefits payable in respect of a person to whom regulation 3 or 4 applies are calculated as if the Benefits Regulations applied to all of his membership, whether accrued before or after 1st April 2008.
(2) The survivor benefits payable in respect of a deferred member to whom regulation 4 does not apply are calculated as if his total membership before 1st April 2008 was a separate period of membership to which the conditions in force at the time he became a deferred member apply.
a. The 1997 Regulations were revoked, save for specified purposes, so that no person could join the 1997 Scheme after 31 March 2008 (reg 2 of the 2008 Transitional Regulations).
b. Active members of the 2008 Scheme who were previously active members of the 1997 Scheme had their total membership and pension rights accrued in the 1997 Scheme preserved, save that their pay for the purposes of such benefits was to be calculated in accordance with the 2007 Regulations (see reg 3 of the 2008 Transitional Regulations).
c. Survivor benefits payable in respect of such persons were calculated as if the 2007 Regulations applied to their whole membership of the LGPS, whether accrued before or after 1 April 2008. However, by reg 3(4) of the 2008 Transitional Regulations, only periods of membership after 5 April 1988 were to be taken into account for the purposes of survivors' pensions for nominated cohabiting partners or civil partners.
d. Those who were deferred members of the 1997 Scheme (eg, those who left LGPS employment but were not then eligible for a pension) who rejoined LGPS employment after 1 April 2008 could within 12 months of rejoining choose to become a member of the 2008 Scheme as if reg 3 applied to them.
e. The survivor benefits payable to active members of the 2008 Scheme or deferred members of the 1997 Scheme who rejoined LGPS employment are determined by reg 6 of the 2008 Transitional Regulations.
(iii) The 2014 Scheme
a. 1997 Scheme: initially survivors' pension payable to different-sex spouses, with pension based on full length of service (for female spouses of male members; the pensions of male spouses of female members based on service back to 5 April 1988). Later extended to civil partners (2005) and to same sex spouses (2014), but only in respect of service on or after 5 April 1988. These latter changes had retrospective effect, in the sense that they were applied to pensioner and deferred members of the 1997 Scheme. (I will say more about retrospectivity later in this judgment when I discuss the evidence).
b. 2008 Scheme: survivor's pension introduced for nominated co-habiting partners of active members and deferred members of 1997 Scheme who became LGPS employees again after 1 April 2008 (and elected to become members of the 2008 Scheme). Requirement for nomination removed in 2014. Length of qualifying service for these purposes is back dated to service after 5 April 1988 (at the earliest). Having become a pensioner member of the LGPS in 2003, Mr Roe did not qualify for a survivor's pension for the Claimant, his co-habiting partner.
c. 2014 Scheme: provides for survivor benefits including for co-habiting partners for active, deferred and pensioner members.
Ms Broadfield's evidence
"12. The principle of no retroactivity is fundamental to the development of pensions policy. Otherwise each evolution in the detail of pension benefits would carry a potentially huge cost in terms of accrued liabilities at the point of change, as well as higher costs accruing in the future. For instance, GAD [the Government Actuary's Department] estimate that if all public service pension schemes extended survivor pensions to unmarried partners and backdated the change to cover all past service credits, the immediate impact on accrued liabilities would be of the order of £10 billion. Not only is it out of the question for this cost to be laid on public funds, but to make it a requirement of financing by scheme members would effectively block the option of changing scheme rules in this way, where it might for other reasons be desirable.
13. 'No retroaction' means that most serving employees would be able to build up only a fractional entitlement to a pension for an unmarried survivor by the time of their retirement. Retired and deferred pensioners would build up no entitlement at all. Unless this were generally understood by scheme members there would be a risk of any review or decision on survivor benefits raising false expectations.
14. No retroaction also means that where a new scheme were (sic) introduced incorporating more expensive survivor benefits financed by higher employee contributions, it would only be possible for members to transfer accrued service credits into the new scheme on less favourable terms than a year for year basis (if the rest of a scheme's benefit provisions remained unchanged, providing one-for-one past service credits will be tantamount to a retroactive application of the new benefits)."
"2.24 In conducting a valuation of a funded or unfunded pension scheme, the scheme actuary must make many assumptions in order to put a value on the benefits that will be earned in the future - for example the longevity of members, and the rate of return that will be earned on the scheme's assets. However, the actuaries must also consider the scheme's rules and any relevant legislation which is in place at the time of the valuation. Actuaries would not make any allowance for any future change in the scheme rules, or in the relevant legislation, unless they were certain that this change would occur.
2.25 It follows, therefore, that any improvements to benefit entitlements which take place after the period in which they have been earned and paid for will increase the size of the scheme's liabilities in a way which was not expected when contributions to the scheme were paid. Without any corresponding increase in the scheme's assets, retrospective improvements such as these would, all else being equal, create a deficit in the scheme's funding. In a funded trust based scheme, the additional cost of funding this kind of shortfall would initially fall on employers (and so in the case of public service schemes, on the Exchequer), and in some cases on scheme members. Given the potential for retrospective changes to create scheme deficits, successive Governments have maintained a policy presumption against making or mandating retrospective changes to pension schemes. This particularly applies when a pension has already been awarded, as there is then no scope for offsetting reductions in the benefits that have been awarded or for the member to make additional contributions.
2.26 When making changes to scheme rules, or to legislation which will affect the value of the members' pension, the general position has therefore been to make these changes prospectively. This means that these changes will apply to benefits which were earned after the changes are made - but not necessarily those which are only paid in the period following any change. This avoids the risks to scheme funding that would be created if schemes are required to meet legal obligations to pay benefits which did not exist at the time those benefits were accrued."
"We agree that any extension of survivor benefits should apply only in respect of active members. It has been the consistent policy of consecutive governments that scheme benefit improvements should as a general rule not be made retrospective but should apply from a given date in respect of future service. However, for partners' benefits it is agreed that past membership can be taken into account, provided that the member meets the cost. You would need to formulate practical proposals to achieve this."
"In relation to the 1997 Scheme, the Government's position at the time this Scheme was created was that it was sufficient that Scheme members wanting to provide for unmarried partners were allowed to surrender part of their own pension and for this to be put towards a pension for their dependent after death. Further, they were entitled to leave their lump sum death grant to a person of their choice under regulation 38. I am not aware of whether or not Mr Roe took advantage of these rights."
"82. There was no suggestion that survivors' benefits should be retrospectively applied to pensioner or deferred members.
83. A variety of views were expressed by consultees on the introduction of cohabiting partners' pensions, but I have reviewed the detailed spreadsheet of consultation responses running to over 200 pages and none proposed that the Government should introduce cohabiting partners' pensions on a retrospective basis for non-active scheme members. This is also reflected in the consultation response summary document produced at the time. Unions representing scheme members, who had been particularly vocal in supporting the addition of survivors' benefits for cohabiting partners during the stocktake, responded that they were in favour of the proposal. None proposed extending it to deferred or pensioner members. In terms of recognising past service of active members, only the GMB response argued for active members' past service to be counted towards benefits."
"Mr Roe's contributions to the 1997 Scheme were set at a level which sought to fund a package entitling him to draw down his pension from the age of 50, but not for an unmarried partner to acquire survivors' benefits. Had Mr Roe been a member of the 2008 Scheme, his contributions would have been set at a different level, which sought to fund a package which did provide for unmarried partner survivors' benefits, but which would not have permitted him to receive his pension until he was 55."
Mr Skeen's evidence
"30. As the LGPS schemes have evolved over time, they have been deliberately designed to provide for clear and predictable rules, and to avoid retrospectivity. Benefit entitlements are only awarded under the schemes to which a member of the schemes contributed: ie a member of the 2008 Scheme who worked until 2013 and then became deferred or retired, would not benefit from an entitlement introduced in 2014 under the 2014 Scheme (but equally that member's entitlements would not be affected by any reductions in entitlements under the new Scheme) …
31. Members of a scheme will understand the suite of benefits they have bought into when they are active members of the scheme, as they are contributing towards the cost of these benefit entitlements through regular deductions from their salary. It would therefore be inappropriate for a member of the Scheme to be awarded a benefit introduced under a new scheme they did not contribute towards, or alternatively, to lose a pension benefit that was taken away under a subsequent scheme of which they had not become a member. The suite of pension benefits that a member of the scheme has understood and accepted, when they have agreed to regular deductions to be taken from their salary cannot be retrospectively diminished or enhanced."
Mr Bayliss' evidence
Article 14 and A1P1: the approach
The relevant provisions of the Convention
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"133. It is common ground that five questions arise in an article 14 inquiry, based on the approach of Brooke LJ in Wandsworth London Borough Council v Michalak  1 WLR 617, 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions  3 All ER 994, 1010, para 52;  3 All ER 577. The original four questions were: (i) Do the facts fall within the ambit of one or more of the Convention rights? (ii) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (iii) Were those others in an analogous situation? (iv) Was the difference in treatment objectively justifiable? Ie, did it have a legitimate aim and bear a reasonable relationship of proportionality to that aim?
134. The additional question is whether the difference in treatment is based on one or more of the grounds proscribed—whether expressly or by inference—in article 14. The appellant argued that that question should be asked after question (iv), the respondent that it should be asked after question (ii). In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided."
"… in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised."
"Lord Walker offered the simile of a series of concentric circles and suggested that these core grounds fell within the circle of the narrowest diameter. But then there was a wider circle which included acquired characteristics, such as nationality, language, religion and politics. Indeed, so Lord Walker suggested, there was an even wider circle which included, for example, the homeless appellant then before the House; which also included the complainant in the Carson case 51 EHRR 369, who had chosen a particular country of residence; and which even included the complainant in Sidabras v Lithuania (2004) 42 EHRR 104, who had previously been employed by the KGB. The value of Lord Walker's simile lies in what he then added  AC 311, :
'The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify.'"
"55. The proposition that not all possible grounds of discrimination are equally potent is not very clearly spelled out in the jurisprudence of the Strasbourg Court. It appears much more clearly in the jurisprudence of the United States Supreme Court, which in applying the equal protection clause of the 14th Amendment has developed a doctrine of "suspect" grounds of discrimination which the court will subject to particularly severe scrutiny. They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim.
58. In its judgments the European Court of Human Rights often refers to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds. This appears, for instance (in relation to cases of discrimination on the ground of sex) in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 501, para 78; Schmidt v Germany (1994) 18 EHRR 513, 527, para 24; Van Raalte v Netherlands (1997) 24 EHRR 503, 518-519, para 39. When Harris, O'Boyle and Warbrick's valuable work, Law of the European Convention on Human Rights, was published in 1995, the authors recognised that the Strasbourg Court had its own suspect categories, identifying them as discrimination on the grounds of race, gender or illegitimacy. Since then religion, nationality and sexual orientation have, it seems, been added: see Jacobs and White, European Law of Human Rights, 3rd ed (2002), pp 355-6, citing Hoffmann v Austria (1994) 17 EHRR 293, 316, para 36; Gaygusuz v Austria (1997) 23 EHRR 364, 381, para 42 and Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 47, 1071, para 36 …"
"In practice, the analysis carried out by the European Court of Human Rights usually elides the second element—the comparability of the situations—and focuses on the question whether differential treatment is justified. This reflects the fact that an assessment of whether situations are "relevantly" similar is generally linked to the aims of the measure in question: see, for example, Rasmussen v Denmark (1985) 7 EHRR 371, para 37."
"It is always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation."
"(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."
"A wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation'." [citations omitted]
"… it is now clear that, while this criterion may sometimes be apt to the process of answering the first question, and perhaps also the second and third questions, it is irrelevant to the question of fair balance, which, while free to attach weight to the fact that the measure is the product of legislative choice, the court must answer for itself: see In Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill  UKSC 3,  AC 1016, para 46, Lord Mance."
"Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position that, even with the broad margin of appreciation afforded to the state, the court will conclude that the policy is unjustifiable."
The parties' submissions
The Claimant's case in summary
a. First, she says that she loses out on any survivor's benefits because she and Mr Roe were not married. If she had been married to him, and he had served for exactly the same period of time at exactly the same dates in the same job, she would have been entitled to a survivor's pension calculated by reference to his entire length of LGPS membership. Hence, she says her status for these purposes is her unmarried state, and she says that the pool of relevant comparators are 'Pre-2008 spouses', ie, spouses of pensioner members of the 1997 Scheme, who are eligible for a survivor's pension.
b. Second, she says she loses out on any survivors' benefits because of the requirement in the 2008 Scheme for the member of the 1997 Scheme to have been active as at 1 April 2008 (or to have been a deferred member of the 1997 Scheme as at that date and rejoined LGPS employment after that date) so as to become eligible for a survivor's pension for an unmarried partner under the 2008 Scheme. She says that her status for these purposes is as the partner of a non-active 1997 Scheme member as at 1 April 2008, and that the pool of relevant comparators are 'Post-2008 cohabitees', ie, cohabitees of active members as at 1 April 2008.
The Defendants' case in summary
a. As concerns the comparison between 'Pre-2008 Cohabitees' and 'Pre-2008 Spouses', it is well-established in the case law of the European Court of Human Rights that marriage confers a special status upon those who enter into it: hence, Mr Milford says, the Claimant (who chose not to marry) is not in a relevantly similar position to a Pre-2008 Spouse.
b. As concerns the comparison between 'Pre-2008 Cohabitees' and 'Post-2008 Cohabitees', the date upon which an individual's partner retired, Mr Milford says this does not give rise to a relevant 'status' for the purposes of Article 14. In any case, Pre-2008 and Post-2008 Cohabitees are not in a materially similar position: their partners belonged to entirely different Schemes with different suites of benefits (the 2008 Scheme being more favourable than the 1997 Scheme in some respects, and less favourable in others).
a. The approach taken in 2007-2008 to creating a new LGPS scheme which did not retrospectively extend the right to cohabitee pensions to pensioner members of previous schemes was justified by reference to a number of important legitimate aims. Those included (i) the establishment of a new Scheme which implemented desired benefit structures at a stable and affordable cost; (ii) managing and reflecting intergenerational fairness through the provision of benefits only to those who would pay for them through contributions; and (iii) adopting a Scheme which could readily be administered and which protected existing active members. It applied a clear, but necessarily bright line, rule in order to create a suitably funded overall package of benefits and costs.
b. The Claimant now wishes to take one of the benefits of the 2008 and 2014 Schemes without any of the costs, leaving those costs to be borne by members (who did not obtain the benefits of the earlier scheme) and by the taxpayer. The Secretary of State was plainly entitled to take the view when introducing the cohabitee benefit in the 2008 Scheme that such a retrospective windfall was not appropriate. Still less is he now required to redesign the 2014 Scheme to include a retrospective windfall of this type, at a cost of up to £1.1 billion for the LGPS alone (and far greater costs, were the same principles to be applied to all other public sector pension schemes), in a context where LGPS funds are heavily in deficit; where the costs of pension provision for an aging population are ever-increasing; and where local authorities are under huge financial pressure.
a. The Claimant is not entitled to a pension on the ordinary meaning of the rules pertaining to the 1997 Scheme.
b. Article 14 does not produce a different outcome. The Claimant is not in analogous position to her suggested comparators. Alternatively, if she is, then any difference in treatment is justified. Also, says Mr Cornwell, the Claimant's suggested status as a Pre-2008 Cohabitee is not a status for the purposes of Article 14.
c. There is a well developed body of Strasbourg case law supporting the proposition that married spouses and unmarried cohabitees are not in analogous positions in respect of pensions or other fiscal measures, and in any event, any difference in treatment is easily justified. Also, the Claimant is essentially seeking to avail herself of the benefits of the 2008 Scheme to which Mr Roe never belonged, without accepting the disadvantages of the later Scheme as compared with the advantages of the 1997 Scheme which he benefitted from.
d. The Claimant's age claim is unsupported by any evidence, and in any event is parasitic upon her claim as a Pre-2008 Cohabitee versus a Post-2008 Cohabitee.
What is not in dispute
"33. The Court considers that the applicants' complaints about the non-payment to them of WP fall within the scope of Article 1 of Protocol No. 1 (see Stec and Others v. the United Kingdom (dec.) [GC], nos.65731/01 and 65900/01,  ECHR 393, § 54, ECHR 2006- ...) …
34. The Court recalls that Article 1 of Protocol No. 1 does not include a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see the Stec and Others decision, cited above, §§ 54-55)."
(ii) Difference in treatment
The issues to be determined
a. Does the difference in treatment of which the Claimant complains come about because of one of the grounds proscribed, expressly or by inference, in Article 14; in other words, does it occur because of the Claimant's 'status' as that term is interpreted in relation to Article 14 ('status') ?
b. If so, are the others put forward by the Claimant for comparison in an analogous situation ('comparability') ?
c. If so, is the difference in treatment objectively justifiable, ie, does it have a legitimate aim and bear a reasonable relationship of proportionality to that aim ('justification') ?
(i) Status and comparability
"… these are not analogous situations. Though in some fields, the de facto relationship of cohabitees is now recognised, there still exist differences between married and unmarried couples, in particular, differences in legal status and legal effects. Marriage continues to be characterised by a corpus of rights and obligations which differentiate it markedly from the situation of a man and woman who cohabit."
"The court considers that the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government."
"63 Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Art.12 of the Convention and gives rise to social, personal and legal consequences. In Shackell, the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors' benefits, since "marriage remains an institution which is widely accepted as conferring a particular status on those who enter it". The Grand Chamber considers that this view still holds true.
65 As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there can be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand, the absence of such a legally binding agreement between the applicants renders their relationship of cohabitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. This view is unaffected by the fact that, as noted at  above, Member States have adopted a variety of different rules of succession as between survivors of a marriage, civil partnership and those in a close family relationship and have similarly adopted different policies as regards the grant of inheritance tax exemptions to the various categories of survivor; states, in principle, remaining free to devise different rules in the field of taxation policy."
"69. The Court does not accept the applicant's suggestion that her relationship with Mr A., being in societal terms equal to a marriage or a registered partnership, should attract the same legal consequences as such formalised unions. States are entitled to set boundaries to the scope of testimonial privilege and to draw the line at marriage or registered partnerships. The legislature is entitled to confer a special status on marriage or registration and not to confer it on other de facto types of cohabitation. Marriage confers a special status on those who enter into it; the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences (see, mutatis mutandis, Burden v. the United Kingdom [GC], no. 13378/05,  ECHR 357, § 63, ECHR 2008-...; and Serife Yigit v. Turkey [GC], no. 3976/05,  ECHR 1672, § 72, ECHR 2010-...). Likewise, the legal consequences of a registered partnership set it apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of such a legally binding agreement between the applicant and Mr A. renders their relationship, however defined, fundamentally different from that of a married couple or a couple in a registered partnership (see Burden, cited above, § 65). The Court would add that, were it to hold otherwise, it would create a need either to assess the nature of unregistered non-marital relationships in a multitude of individual cases or to define the conditions for assimilating to a formalised union a relationship characterised precisely by the absence of formality."
"… the decision whether a married and unmarried couple are in an analogous situation must be made in the light of the scheme under examination. By the end of 2003 unmarried couples were being treated substantially the same as married couples for the purposes of the occupational pension scheme and the government had announced that it would by 2005 be treating them the same for the purposes of the 2005 Order. This distinguishes the present case from the situation in Burden's case (2008) 47 EHRR 38. Thus in 2004 it would, in my view, be wrong to say that they were not, in the context of armed forces benefits, in an analogous position for the purposes of article 14."
"90 I agree with the judge that, in the context of bereavement damages under section 1A of the FAA, the situation of someone like Ms Smith, who was in a stable and long-term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of article 14 in conjunction with article 8. In the context of this particular scheme, it is not the special legal status and legal consequences of marriage and civil partnership that are material, in the sense of providing a rational distinction with other people and relationships: cf, for example, Burden's case, in which the ECtHR rejected the complaint of two unmarried sisters, who had lived together all their lives, that the liability to inheritance tax payable on the death of one of them, which would not be faced by the survivor of a marriage or civil partnership, would violate their rights under article 14 read with A1P1. Rather, it is the intimacy of a stable and long-term personal relationship, whose fracture due to death caused by another's tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees.
91 In making that analogy, it is plainly material that Parliament has treated 2 years + cohabitees as being in a stable and long-term relationship comparable to that of spouses and civil partners for the purposes of dependency damages, and that neither in Parliament nor in any evidence before the court has any member of the Government provided any justification for the different treatment of 2 years + cohabitees under section 1A. As the judge said  PIQR P4, paras 34 and 109 the Secretary of State's position has a degree of incoherence."
"The Shackell and Burden cases were decisions in the context of taxation and social benefits, where the right to which the alleged discrimination related was the right to protection of property under article 1 of the First Protocol to the Convention. The present appeal arises in the different context of the right to respect for private and family life, in relation to which it is clear that distinctions between married and unmarried persons may be unjustifiably discriminatory."
"27. … This applicant differs from a married father only as regards the issue of marital status and may, for the purposes of this application, claim to be in an relevantly similar position.
28. The justification for the difference in treatment relied on by the Government is the special regime of marriage which confers specific rights and obligations on those who choose to join it. The court recalls that it has in some cases found that differences in treatment on the basis of marital status has had objective and reasonable justification … It may be noted however that as a general rule unmarried fathers, who have established family life with their children, can claim equal rights of contact and custody with married fathers … In the present case, the applicant has been acknowledged as the father and has acted in that role. Given that he has financial obligations towards his daughter, which he has duly fulfilled, the court perceives no reason for treating him differently from a married father, now divorced and separated from the mother, as regards the tax deductibility of those payments. The purpose of the tax deductions was purportedly to render it easier for married fathers to support a new family; it is not readily apparent why unmarried fathers, who undertook similar new relationships, would not have similar financial commitments equally requiring relief.
29. The court concludes therefore that there has been a violation of article 14 of the Convention in conjunction with article 1 of the First Protocol in this case."
"… it is unhelpful to look at the terms of a defined benefit pension scheme from the point of view of one particular member. The scheme has to be designed and costed by reference to its coherence as a whole. The funding of the scheme has been designed to fund those benefits accrued at the point at which the scheme is to commence, and estimated to accrue over the lifetime of the scheme on the basis of the best available assumptions at the time."
"… the Court considered that no discrimination was disclosed by legislative measures being prospective only or by a particular date being chosen for the commencement of a new legislative regime … In this regard, it has noted that the use of a cut-off date creating a difference in treatment is an inevitable consequence of introducing new systems which replace previous and outdated schemes."
"Insofar as the applicants further complained about discrimination on ground of age, alleging that earlier generations of pensioners received considerably higher pensions than they themselves would on reaching pension age, the Court notes that the applicants have not established that their own situation is comparable to that of earlier pensioners. In this respect, it has to be taken into account that the State must be in a position to adapt the pension system to the change of socio-economic circumstances. Accordingly, the applicant cannot claim equal treatment 'in time'".
"74. There may be differences of view about whether "age" is a suspect ground for discrimination, requiring a more intense scrutiny, or whether "old age", which is not quite the same, can be. But the grounds of differentiation here, not wholly characterised as those of age, are not suspect grounds. The grounds of difference do not arise because someone is above or below a particular age, but because the introduction of changes which are not directly age related are defined by dates, and years of service. The drawing of lines, by reference to dates, around schemes which help some and not others is an inevitable part of many legislative or policy changes; this is the more so where a past disadvantage or even wrong is being remedied retrospectively. Of course, this means that either the older or the younger will be affected; the date itself will import an indirect differentiation on age grounds. But that is a weak starting point for an assertion of indirect discrimination on age grounds. In any event, if there is a rational basis for the selection of the date as at which the changes are made, that disposes of the Article 14 challenge."
"89 At the end of the day this case, in my view, falls squarely within the now well-established principle that where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that the discrimination is not justified. Whatever the position today, historically the distinction in the war pension scheme between married and unmarried partners and between unmarried partners who fell within the very narrow criteria for a pension and other unmarried partners was justified. In 2003 the government recognised that the distinction was no longer justified, altered the occupational pension scheme prospectively and announced its intention to make changes to the war pension scheme from some time in the future but also prospectively. The decision, from what point in time unmarried partners are put in an analogous position to spouses in the field of pensions, is a decision for the government and is a decision with which the courts will not normally interfere. In the words of Laws LJ in Carson's case , para 73 (referred to at para 51 above):
'In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest.'"
"22. Mr Lask also pointed out that the status which was the basis of the difference in treatment – being a "common law" as opposed to a legal spouse – was not a "suspect ground" in the sense explained by Lord Hoffmann in the well-known passage of his speech in R (Carson) v Secretary of State for Work and Pensions  1 AC 173 (see paras. 15-16 (pp. 182-3)), and that the court could and should apply a less rigorous standard of review. He referred us to a similar passage in the judgment of the ECtHR in Bah [v UK (2012) 54 EHRR 21], where it said (again, at para. 47 (p. 790)):
"The Court recalls that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. As observed above … immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. In the applicant's case, while she entered the United Kingdom as an asylum seeker, she was not granted refugee status. She cannot therefore be described as a person who was present in a Contracting State because, as a refugee, she could not return to her country of origin. Furthermore, she subsequently chose to have her son join her in the United Kingdom. Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality."
(1) Is the objective(s) of the measure sufficiently important to justify the limitation of the protected right ?
"2.26 When making changes to scheme rules, or to legislation which will affect the value of the members' pension, the general position has therefore been to make these changes prospectively … This avoids the risk to scheme funding that would be created if schemes were required to meet legal obligations to pay benefits which did not exist at the time that those benefits were accrued."
"The guiding principle is that members of public service pension schemes should receive the benefits which they are promised during their service in return for that service and their contributions to the scheme. Explicitly, the scheme does not promise that years after members have moved to another employer or retired, their benefits will be enhanced to reflect what is judged reasonable to recruit and retain future generations of public servants in different social climates."
(2) Is the measure rationally connected to the objective(s) ?
(3) Could a less intrusive measure have been used without unacceptably compromising the achievement of the objective ?
(4) Balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, does the former outweigh the latter ?
"…the allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another."
See  per Lady Hale and also  per Lord Mance (accepting, however, that a policy in favour of marriage could constitute justification for differential treatment, when children were not involved).