Secretary of State for Social Security v. Thomas and Others ECJ  UKSSCSC CS_98_1987 (30 March 1993)
(Secretary of State for Social Security v. Thomas and Others)
ECJ (C. N. Kakouris, President of the Chamber, CS/98/1987
G. F. Mancini, F. A. Schockweiler, M. Díez de CG/29/1987
Velasco and P. J. G. Kapteyn, judges; Advocate CG/36/1988
General: G. Tesauro) CG/12/198830..3.93 CS/42/1988
Discrimination on grounds of sex - non-contributory benefits - whether unequal age conditions linked to different pension ages for men and women contrary to Council Directive 79/7/EEC
The female claimants claimed either invalid care allowance or severe disablement allowance when aged between 60 and 65 and were refused benefit on the ground that they had not been entitled to the allowance when they reached pensionable age (which was 60 for a woman and 65 for a man). The Court of Appeal (whose decision is reported as an appendix to R(G) 3/89) held that they were entitled to benefit by virtue of Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security. The Secretary of State appealed to the House of Lords who referred a number of questions to the European Court of Justice.
- the rule in question, which denied women who have attained the age of 60 benefits whereas men continue to receive them until the age of 65, was discriminatory and therefore might be justified only under Article 7(1)(a), allowing derogation in respect of determining pensionable age for the purpose of granting old age and retirement pensions and "the possible consequences thereof for other benefits";
- due to the fundamental importance of the principle of equal treatment, Article 7(1)(a) must be interpreted strictly: Marshall v. Southampton and South-West Hampshire Area Health Authority  ECR 723;
- forms of discrimination provided for in benefit schemes other than old age and retirement pension schemes could be justified, as being the consequence of determining a different retirement age according to sex, only if such discrimination was objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes;
- the grant of benefits under non-contributory schemes, regardless of the entitlement of such persons to an old age pension by virtue of contribution periods completed by them, had no direct influence on the financial equilibrium of contributory pension schemes;
- the discrimination was unnecessary to preserve the financial equilibrium of the entire social security system as there were national rules to prevent overlapping of benefits and also because the grant of invalid care allowance or severe disablement allowance took the place of benefits paid under other non-contributory schemes, such as benefits paid to people who had insufficient resources to support themselves;
- the grant of benefits such as invalid care allowance and severe disablement allowance constituted, for women who were not yet in receipt of old age pension despite their having attained the normal retirement age, an individual right which could not be denied on the ground that, statistically, their situation was exceptional by comparison with that of most women;
- where a Member State prescribed different retirement ages for men and women for the purposes of granting old age and retirement pensions, the scope of the permitted derogation, defined by the words "possible consequences thereof for other benefits" contained in Article 7(1), was limited to the forms of discrimination existing under the other benefit schemes which were necessarily and objectively linked to the difference in retirement age.
[Note: In the light of the decision of the European Court of Justice, the Secretary of State's appeals to the House of Lords were dismissed by consent.]
DECISION OF THE EUROPEAN COURT OF JUSTICE
Mr. M. Rowland, Barrister, instructed by Bradford Law Centre, Bradford, for Mrs. Beard.
Mr. M. Rowland, Barrister, instructed by Messrs. Wiseman Lee, London E12 6SJ, for Mrs. Cooze.
Mr. M. Rowland, Barrister, instructed by the Smith Llewelyn Partnership, Swansea SA1 3LW, for Mrs. Morley.
Mrs. Thomas and Mrs. Murphy were unrepresented.
Mr. A. Lester QC and Ms. B. Lang and Mr. J. Beale, Barristers, instructed by Mr. J. A. Lakin Solicitor and Legal Adviser, for the Equal Opportunities Commission.
Mr. E. Röder, Ministerialrat in the Federal Ministry of Economic Affairs, agent for the German Goverment.
Mr. R. Plender QC and Mrs. S. Lucinda Hudson, of the Treasury Solicitor's Department, agent for the United Kingdom.
Mr. K. Banks, of its Legal Service, agents for the Commission of the European Communities.
The opinion of the Advocate General was delivered on 27 January 1993 and is reported at  ECR I-1259.
"1. Where pursuant to Article 7(1)(a) of Directive 79/7, on the progressive implementation of the principle of equal treatment for men and women in matters of social security, a Member State preserves different pensionable ages for men and women for the purpose of granting old age and retirement pensions, is the scope of the derogation permitted by the words "possible consequences ... for other benefits" in Article 7(1)(a) limited to:
(a) provisions in schemes for those other benefits which are necessary to enable the schemes to operate consistently with the schemes for old age and retirement pensions without illogicality, unfairness or absurdity; or
(b) provisions in schemes for those other benefits which the Member State has linked to provisions in old age and retirement pension schemes, in the exercise of its discretion, acting in accordance with the principle of proportionality; or
(c) some other provisions, and if so which ones?
(a) that the provision is appropriate and necessary to achieve the aim of the Member State; or
(b) that the provision is appropriate and necessary to achieve the aim of Directive 79/7; or
(c) both (a) and (b) above; or
(d) that the provision was enacted for the purpose of reducing, minimizing or limiting the overall discriminatory affects of providing different pensionable ages for men and women; or
(e) that some other test is satisfied, and if so which one?
(a) to rely upon statistical data relating to male and female working and retirement patterns to justify the differential treatment of men and women; or
(b) to rely upon the derogation notwithstanding that in a particular case the applicant for the benefit can show that although over pensionable age she does not in fact receive an old age or retirement pension and/or she would have been working but for the occurrence of the relevant risk (invalidity or severe disablement)?
- Where national law provides that there shall be pensionable ages of 60 for women and 65 for men for the purpose of granting old age and retirement pensions and that there shall be an invalidity benefit scheme for persons of working age, does Directive 79/7 require a Member State to apply the same upper age limit (if any) for both men and women when defining the scope of the scheme for invalidity benefit?"
On those grounds,
THE COURT (Sixth Chamber)
in answer to the questions referred to it by the House of Lords, by judgment of 17 December 1991, hereby rules:
Where, pursuant to Article 7(1)(a) of Directive 79/7, a Member State prescribes different retirement ages for men and women far the purposes of granting old age and retirement pensions the scope of the permitted derogation, defined by the words 'possible consequences thereof for other benefits', contained in Article 7(I)(a) is limited to the forms of discrimination existing under the other benefit schemes which are necessarily and objectively linked to the difference in retirement age.