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Cite as: [2011] UKUT 324 (AAC)
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AY v Secretary of State for Work and Pensions [2011] UKUT 324 (AAC) (05 August 2011)
Retirement pensions
other
IN THE UPPER TRIBUNAL Case No. CP/3638/2006
ADMINISTRATIVE APPEALS CHAMBER
Before Judge Nicholas Paines QC
Decision: The decision of the appeal tribunal involves an error of law. I set it aside and substitute my own decision, which is that Mrs Yates was entitled, following the death of Mr Hugh Yates, to a pension paid at the rate that would have been paid to a man who had been married to a woman whose relevant circumstances (apart from sex) were the same as those of Mr Yates.
REASONS FOR DECISION
1. This case has a long history for reasons that I shall explain. It has raised a number of points of law and has involved an appeal to the Court of Appeal. The decision of the Court of Appeal has resolved the question of the interpretation (leaving aside issues of EU and ECHR law) of the relevant provisions of pension legislation. The issues that remain to be determined are issues of human rights law and of whether some of the provisions at issue are ultra vires.
2. I do not need to anonymise this decision. The parties involved are now deceased, the only facts that I need to mention are in the public domain and the claimant is in any event named in the judgment of the Court of Appeal. In an earlier direction I invited the claimant’s representative to object to this if he wished to, and he has not.
The facts
3. The late Mr Hugh Yates was born in the United Kingdom in 1911. During his working life in this country he made National Insurance contributions entitling him to a pension comprising a small amount of Graduated Retirement Benefit (GRB) and a retirement pension governed by what is now the Social Security Contributions and Benefits Act 1992. The pension came into payment in 1976. In that year Mr Yates and his first wife emigrated to Canada. The effect of their doing so was that the ‘up-rating’ of his pension was frozen at the rate at which it stood when he emigrated, which was the rate set by an up-rating order of November 1975.
4. In September 2001, his first wife having died several years before, Mr Yates married the claimant, Mrs Alma Yates. Mrs Yates, who herself died in January 2008, was born in Canada in 1927 and lived all her life in that country. Mr Yates informed the DWP of his marriage and Mrs Yates completed a claim form for a Category B retirement pension. It is not in dispute that, following the marriage, Mrs Yates became entitled to a Category B pension under section 48A of the Act; the issue is as to the correct rate. In April 2002 a Category B pension was awarded to Mrs Yates, with effect from September 2001 but at the 1975/6 rate at which Mr Yates’s Category A pension had been paid since his emigration.
5. In May 2002, Mr Yates died. Mrs Yates informed the DWP of this and in June 2002 the Department decided that Mrs Yates was entitled, with effect from Mr Yates’s death, to a surviving spouse’s Category B pension, again at the 1975/6 rate. In July 2002 Mrs Yates appealed, contending that her pension should be paid at the then current rate.
6. I refer to the relevant legislative provisions in more detail below; it is sufficient to note at this stage that the ‘freezing’ of Mr and Mrs Yates’s pensions was pursuant to regulation 5 of the Social Security (Persons Abroad) Regulations 1975, as amended.
The appeals
7. Mrs Yates’s stepson, Mr Frank Yates, has at all times acted as her representative in these proceedings and latterly as the representative of her estate. He has argued that payment of the pension at the 1975/6 rate infringes the European Convention on Human Rights (and thus the Human Rights Act 1998) and infringes EU law and that payment at the 1975/6 rate was contrary to a common law principle preventing the retroactive application of a statute. Prompted by some observations in the Court of Appeal he argues that regulation 5 is ultra vires. Initially he argued that Mrs Yates was entitled to a pension at the then current rate on a correct interpretation of the relevant legislative provisions, but that issue has been determined adversely to Mrs Yates by the Court of Appeal.
8. The appeals came before an appeal tribunal in January 2003. Mr Frank Yates attended and the DWP were represented. The tribunal refused a request by the Department for an adjournment, given that Mr Yates had travelled from Canada for the hearing. He handed in a file of authorities together with further supporting documents, including a submission on EU law, and developed orally the grounds advanced in his written submissions.
9. There was debate about whether the case was covered by the High Court judgment in R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin), which was itself under appeal to the Court of Appeal. The tribunal told the parties that (sensibly in my view) it would await the outcome of Carson before deciding the appeal. In the event, Carson was appealed to the House of Lords, which decided the appeal in May 2005 ([2005] UKHL 37). In April 2006 the tribunal gave a careful and detailed decision, running to 19 pages, in which it dismissed Mrs Yates’s appeal.
10. Mrs Yates sought leave to appeal and Mr Frank Yates provided a detailed submission taking issue with various aspects of the tribunal’s reasoning. In November 2006 Mr Commissioner Mesher gave leave to appeal on the grounds of the complexity of the issues. He also directed the Secretary of State to make a submission on the interpretation and operation of regulation 5 of the Persons Abroad Regulations, dealing with three particular issues regarding the validity of the amendments made to it by the Social Security (Persons Abroad) Amendment (No 2) Regulations 1994 and with whether the amended regulation 5 was effective to freeze Mrs Yates’s pension at 1975/6 rates. The Commissioner understandably took the view that it was appropriate to decide how the legislative provisions operated before approaching the issues of their compatibility with EU or ECHR law.
11. The Secretary of State made the required submission, to which Mr Yates replied; there was a further submission from the Secretary of State in response to a further direction. It is unnecessary to review those submissions since the issues to which they were directed have now been determined by those parts of Mr Mesher’s decision that have not been appealed and by the decision of the Court of Appeal on the Secretary of State’s appeal against that decision.
12. In January 2008 Mr Mesher issued a draft interim decision for the comments of the parties, explaining that this procedure was a substitute for the oral hearing that he would have held if all the parties had been in Britain. In it he held that the 1994 amendments were validly made and that the tribunal had correctly applied the pension legislation as regards Mrs Yates’s Category B pension during the life of Mr Hugh Yates, but not as regards her pension following his death. He proposed to set aside the tribunal’s decision on the second appeal, to decide that Mrs Yates was entitled to a survivor’s Category B pension at the rate prevailing in 2001/2 and to direct that Mrs Yates’s representative could within six weeks make a submission on the effect of the Human Rights Act or EU law on her pension entitlement.
14. Before the Court of Appeal the Secretary of State had accepted that, if his appeal to that court succeeded (as it did), the case would have to be remitted to the Upper Tribunal so that the matter could be reviewed in the light of the decision of the Court of Human Rights in Carson and others (42184/05, 16 March 2010), which was an application made to that Court by the unsuccessful claimant in the domestic Carson litigation and 12 other claimants. Those claimants had relied on article 1 of the First Protocol to the ECHR (hereafter ‘article 1P’), both alone and in conjunction with article 14 of the Convention and on article 8 in conjunction with article 14. In November 2008 a Chamber of the Court declared the claim under article 1P standing alone to be inadmissible as unarguable. In March 2010 the Court dismissed the claim based on article 1P in conjunction with article 14; it declared the claim based on articles 8 and 14 to be inadmissible not on its merits but because the claimants had not exhausted a domestic remedy.
15. In April 2010 (the functions of Social Security Commissioners having by then been transferred to the Upper Tribunal) Judge Rowland directed Mrs Yates’s representative to make any further written submission within one month; Mr Frank Yates did so, arguing that his claims under article 8 standing alone and article 8 in conjunction with article 14 survived the European Carson decision and should be determined. He also submitted, on the basis of Carnwath LJ’s observations quoted above, that the relevant regulation was ultra vires. He made further submissions supporting those arguments. In a response (submitted in July 2010) to a further direction issued in May 2010, the Secretary of State accepted that it was open to Mrs Yates to raise the ‘article 8 point’ but argued that it had no merit. Mr Frank Yates responded in August 2010, amplifying his arguments; he agreed that there need not be an oral hearing.
16. The case then came before me in January 2011. I identified thirteen issues that were or might be live issues in the case. I was able to reach a provisional conclusion on eleven of them, but there were two issues arising under the Human Rights Act in respect of which it seemed to me that Mrs Yates might have a good argument but I did not have sufficient submissions from the Secretary of State to decide the issues. On 14 January I issued a direction in which I told the parties my provisional conclusions (which were adverse to Mrs Yates) on the eleven issues, giving my reasons for those conclusions, and directed a submission from the Secretary of State on the remaining two; the direction made provision for Mr Frank Yates to respond to the Secretary of State and/or to comment on any part of the reasoning in my direction.
17. The Secretary of State made a written submission dated 16 May (having received more than one extension of time on the grounds of needing to consult the Departmental solicitor’s office). Mr Frank Yates responded on 6 June. As a result of his response, only three issues remain for determination; these are the two issues on which I invited further submissions and the issue of whether the relevant Regulations are ultra vires, on which Mr Yates does not accept my earlier provisional conclusion.
18. In earlier submissions Mr Yates has, understandably, drawn attention to the time that has passed since the appeals were started in 2002. I consider that much of the delay has been for understandable reasons. The tribunal sensibly decided to await the outcome of Carson. The time that has elapsed since the tribunal’s decision was to a large extent the result of a conscientious decision by Mr Commissioner Mesher to investigate a point that Mr Yates had not taken but which appeared to the Commissioner to be a good point in Mrs Yates’s favour, followed by an appeal to the Court of Appeal. In the meantime, the Carson petitions to the Human Rights Court had been declared admissible as regards articles 14 and 1P and that Court’s decision (which it was again sensible to await) was expected in March 2010. The period since Judge Rowland’s first directions of April 2010 has involved further directions by Judge Rowland and then by myself. The case has raised (and continues to raise) difficult issues and, while it would have been desirable for the various stages to have passed more quickly, I do not consider that delay has reached the point of being unacceptable. Though I was not originally booked to sit in this jurisdiction at this time, I have arranged to do so in order that the case can be decided without further delay.
The legislation
19. I need to refer to various provisions of the Contributions and Benefits Act and the Persons Aboard Regulations. As it stood at the relevant time, section 48A of the Act entitled a married person (it has since been extended to include civil partners) who has attained pensionable age to a Category B retirement pension by virtue of their spouse’s contributions either if on attaining pensionable age they were married or (as in Mrs Yates’s case) once they later married. The spouse must be entitled to a Category A pension and satisfy certain further conditions. While the spouse is alive the pension is payable at a lower rate (and is referred to by the DWP as a ‘Category BL’ pension); after the spouse’s death the rate is equal to the deceased spouse’s basic Category A pension and half of their additional pension: section 48A(4).
21. Section 51 of the Act was the successor to a provision first introduced into pensions legislation in 1979. At the material time it entitled a man to a Category B pension if his wife had died after 6 April 1979 and they were still married and both over pensionable age when she died. The rate of the pension was equal to the rate of the deceased wife’s Category A pension. It has now been replaced by pensionability under section 48BB.
22. Each year the rates of retirement pension are ‘up-rated’ by reference to increases in prices, by virtue of ‘up-rating orders’ which the Secretary of State is obliged to lay before Parliament if there has been an increase in levels of prices or earnings (sections 150 and 150A of the Social Security Administration Act 1992).
23. Pensioners who are not ordinarily resident in Great Britain and their spouses and survivors are, in general, not entitled to benefit from up-rating orders made after they left. This is as a result of the interaction of section 113 of the Contributions and Benefits Act and the Persons Abroad Regulations. Section 113 provides so far as material that
(1) Except where Regulations otherwise provide, a person shall be disqualified from receiving any benefit under Parts II to V of this Act and an increase of such benefit shall not be payable in respect of any person as the beneficiary’s wife, husband or civil partner, for any period during which the person
(a) is absent from Great Britain ….
24. The effect of section 113 is then mitigated by the Persons Abroad Regulations. Regulation 4(1) removes the disqualification, subject to regulation 5 which, in short, disqualifies the categories of people listed in regulation 5(3) for up-rating. The Social Security Benefit (Persons Abroad) Amendment (No 2) Regulations 1994 added a further category, regulation 5(3)(aa), in which Mrs Yates fell.
25. As they stood at the time of her claims, regulations 4 and 5 provided, so far as material:
4. Modification of the Act in relation to ... retirement pension
(1) Subject to the provisions of this regulation and of regulation 5 below, a person shall not be disqualified for receiving ... a retirement pension of any category ... or graduated retirement benefit by reason of being absent from Great Britain.
5. Application of disqualification in respect of up-rating of benefit
(1) Where regulations made in consequence of an order under section 150 (annual up-rating of benefits) or 150A (annual uprating of basic pension etc and standard minimum guarantee) of the Social Security Administration Act 1992 provide for the application of this regulation to any additional benefit becoming payable by virtue of that order, the following provisions of this regulation shall, subject to regulation 12 below and the provisions of those regulations, have effect in relation to the entitlement to that benefit of persons absent from Great Britain.
(2) In this regulation ...
(a) references to additional benefit of any description are to be construed as referring to additional benefit of that description which is, or but for this regulation would be, payable by virtue (either directly or indirectly) of the said order; and
(b) “the appointed date” means the date appointed for the coming into force of the said order.
(3) Subject to paragraph (8) and the Schedule below, where a person is not ordinarily resident in Great Britain immediately before the appointed date the provisions of these regulations (except this regulation) shall not, unless and until he becomes ordinarily resident in Great Britain, affect his disqualification while he is absent from Great Britain for receiving—
(a) in the case of a woman who immediately before the appointed date was a married woman and was not entitled to a Category B retirement pension, any additional Category B retirement pension, if immediately before that date her husband was entitled to a Category A retirement pension and was not ordinarily resident in Great Britain;
(aa) in the case of a married woman, any additional Category B retirement pension if immediately before the appointed date her husband was entitled to a Category A retirement pension and was not ordinarily resident in Great Britain (whether or not she was married to him immediately before that date);
(b) in the case of a person who immediately before the appointed date is a widow or widower, any additional Category B retirement pension, if the former spouse had died before the appointed date;
(c) in any other case, any additional retirement pension of any category or any additional graduated retirement benefit, if that person had become entitled to a retirement pension or to graduated retirement benefit before the appointed date....
26. Regulation 5 produces the result, first of all, that Mr Hugh Yates was not disqualified from continuing to receive his Category A pension following his emigration, but fell under regulation 5(3)(c) as regards any increase to the rate of that pension effected by up-rating orders made after his emigration. In the form in which the Regulations stood up to 1994, they would not have disqualified Mrs Yates from receiving her Category B pension at the rate yielded by up-rating orders made prior to the pension coming into payment, but regulation 5(3)(c) would have prevented her from receiving any further up-rating. But, by the time of her claim, regulation 5(3)(aa) had been added by the Amendment (No 2) Regulations.
27. Initially there was a dispute about the effect of regulation 5(3)(aa). For reasons that I need not go into, Mr Mesher held that the regulation was effective to freeze Mrs Yates’s pension at 1975/6 rates while Mr Yates was alive but that after Mr Yates’s death Mrs Yates’s pension was payable at the 2001/02 rate and the Persons Abroad Regulations only prevented further up-rating above that rate. The Court of Appeal held that the Regulations had the effect of freezing Mrs Yates’s pension at 1975/6 rates at all times.
The issues
28. The issues that I need to decide are (1) whether regulation 5 of the Persons Abroad Regulations is ultra vires; if not, (2) whether any part of the legislation infringes article 14 of the European Convention on Human Rights in conjunction with article 1P and/or article 8, on account of amounting to unjustified discrimination on the ground of sex.
29. It is not in dispute that the legislation does not infringe article 1P in isolation (see Stec v United Kingdom (65731/01, 5 July 2005)) nor article 8 in isolation (see Petrovic v Austria (20458/92, 27 March 1998)). Nor is it in dispute that it does not infringe article 14 in conjunction with either of those articles on account of being discriminatory on the grounds of nationality or place of residence: see Carson and others, whose conclusion that non-resident pensioners are not in a relevantly similar situation to resident pensioners must apply equally to non-British non-residents as to British non-residents.
30. No issues of EU law remain. Whilst Mrs Yates was within the ‘personal scope’ of Directive 79/7, the tribunal was right to hold that the only discrimination as regards Category B pensions of which Mrs Yates could complain is outside the scope of application of the Directive. The rate of Mrs Yates’s pension during the late Mr Yates’s lifetime does not involve any sex discrimination: a husband in her position would not have been entitled to a Category B pension at all (see paragraph 20 above). Her pension after his death was a survivor’s pension, excluded from the scope of the Directive by article 3(2).
31. Article 18 of the Treaty on the Functioning of the European Union prohibits discrimination on grounds of nationality ‘within the scope of application of the Treaties’; even if the freezing of pensions paid abroad were indirectly discriminatory on grounds of nationality, the retirement of a British national to a non-EU country is not a situation ‘within the scope of the Treaties’, since no exercise of EU law rights was involved in the late Mr Yates’s emigration.
32. I turn to the live issues.
Ultra vires
33. In the passage quoted at paragraph 13 above, Carnwath LJ criticised the lack of clarity of regulation 5, the degree of departure of the scheme set up by the Regulations from the simple disqualification in section 113 and the fact that the Regulations only disqualified those not ordinarily resident in (rather than absent from) Great Britain and only disqualified them for receiving increments. The first issue raised by his remarks is whether they amount to a conclusion that the Regulations were in whole or in part ultra vires. Judge Rowland commented in his direction of April 2010 that, had the Court thought the Regulations being invalid might assist the Appellant they would have been bound to consider the point, but that Carnwath LJ’s comments raised a question about the validity of the Regulations as a whole and holding them to be invalid would not assist Mrs Yates as it would leave her subject to the total disqualification in section 113.
34. In his submission of April 2010, Mr Yates submitted that the Court of Appeal were (original emphasis) “expressing their concerns but not definitively expressing that the regulations in question are indeed ultra vires. I believe the unanimous court stepped back from declaring that the regulations are ultra vires because they wanted a full and complete consideration of vires. They wished to reserve this matter for another time or forum” (page 466). In my direction I set out my provisional conclusion that the Court had not held that there was no power to make the Regulations in the form in which they were made, and would not have done if the point had been fully argued.
35. In his submission of June 2011 Mr Yates interprets Judge Rowland as having recognised that the Court of Appeal had reached a conclusion that the Regulations were ultra vires. He further submits that the Court of Appeal did not make an express finding to that effect solely because (as Carnwath LJ put it in the judgment) “no point has been taken before us on the principle as such”. He further submits that only regulation 5 is ultra vires, not the Regulations as a whole.
36. Having reconsidered paragraph 45 of the judgment, I consider that what Mr Yates said in April 2010 is the correct interpretation. The closest Carnwath LJ came to saying that the Regulations were ultra vires was that their manner of drafting was “possibly objectionable in principle”. That was at most a conclusion that they were arguably ultra vires. I do not read Judge Rowland ‘s observation as expressing the view that their conclusion went any further than that. I therefore reach my own decision on the point.
37. I have set out the relevant provisions above. They operate, rather cumbersomely, as follows: (i) section 113 creates a total disqualification of those not in Great Britain from receiving retirement pension or GRB “except where Regulations otherwise provide”; (ii) the Persons Abroad Regulations “otherwise provide”; (iii) they do so, relevantly, as follows: (a) regulation 4 removes the disqualification, subject to regulation 5 and (b) regulation 5(3) provides that the Regulations shall not affect the disqualification of people absent from Great Britain for receiving the types of benefit specified in its subparagraphs in the circumstances described in those subparagraphs; (iv) subparagraph 5(3)(aa) applies to additional Category B pension and (as I then stood) to married women whose husband was not ordinarily resident in Great Britain immediately before the appointed day of the up-rating order in question.
38. Mr Yates has referred in his submissions to section 175 of the Act. It provides so far as material
(3) … any power under this Act to make regulations … may be exercised
(a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case;
(b) so as to make, in respect of the case in relation to which it is exercised
(i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise),
(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class for different purposes of this Act,
(iii) any such provision either unconditionally or subject to any specified condition ….
39. Noting the expression ‘except where Regulations otherwise provide’ in section 113, Mr Yates submits that regulations 4 and 5 of the Persons Abroad Regulations are exceptions to section 113. He notes that Carnwath LJ’s criticisms were directed at the terminology and criteria used in regulation 5 and concludes that regulation 5 is ultra vires. He disagrees with my provisional conclusion, which was that section 175 allows regulation 5 to make exceptions to the provision in regulation 4, arguing that the statutory source of the power to create exceptions is section 113 of the Act, not section 175.
40. I shall explain my reasons for not agreeing with Mr Yates. I accept that section 113 provides a power to create exceptions from the disqualification contained in that section, but that is not what section 175 is referring to when it talks of ‘exceptions’. As its opening words indicate, section 175 comes into play where another provision of the Act creates a power to make Regulations. It then makes provisions as to the permissible shape of those Regulations.
41. I do not agree that both regulation 4 and regulation 5 of the Persons Aboard Regulations are exceptions to the section 113 disqualification. Regulation 4 is an exception to the disqualification but regulation 5 (which, as Carnwath LJ put it, partially ‘restores the disqualification’) creates exceptions to regulation 4. Creating those exceptions is permitted by section 175(3)(a). The result is to make less than ‘the full provision to which the power extends’ (which would be to remove the disqualification fully in every case), but this is permitted by section 175(3)(b)(i); different provision is made for different cases, but this is permitted by section 175(3)(b)(ii). The drafting is poor and hard to follow, and the criteria used are different from that of ‘absence from Great Britain’ used in the Act, but their use is rational and apt to identify people who may legitimately be denied up-rating. I do not consider that they go beyond the powers given to the Secretary of State by section 175.
Discrimination contrary to the ECHR
42. The argument advanced on Mrs Yates’s behalf relies on a comparison with a man in Mrs Yates’s circumstances who had married a woman whose circumstances were identical to those of the late Mr Yates. The tribunal correctly found that such a man would not be entitled to Category B pension while the hypothetical woman was alive, but following her death would have been entitled to Category B pension under section 51 at an up-rated rate.
43. Article 14 prohibits discrimination on a number of grounds, including sex. It is well established that article 14 is not ‘free-standing’; it does not establish a general rule of equal treatment. By its express terms it is the enjoyment of the rights and freedoms set forth in the Convention that is to be secured without discrimination on the prohibited grounds. Article 14 thus has to be relied on in conjunction with another article or articles, as Mr Yates does.
44. Article 14 can be infringed where, without infringing any Convention rights, a state secures the Convention rights of one group of people to a greater extent than another group (and the difference in treatment is on a ground prohibited by article 14). This situation is often described as falling ‘within the ambit’ of the article securing the right in question. An example is Petrovic v Austria: the failure of Austria to pay a parental leave allowance to the father of a young child did not infringe article 8 on its own, because “article 8 does not impose any financial obligation on States to provide the financial assistance in question” (paragraph 26 of the judgment). But, because paying parental leave allowances demonstrates respect for family life, it is potentially contrary to article 14 to pay the allowance to mothers but not fathers (paragraph 29), since the State thereby respects the family life of women to a greater extent than men (though on the facts the difference in treatment was within the State’s margin of appreciation).
45. Another example is the discriminatory distribution of social security benefits. Though the right to peaceful enjoyment of one’s possessions does not extend to a right to acquire property, if the state decides to distribute property (thereby bringing into play the right to respect for that property), it must not do so unequally in a manner that involves discrimination contrary to article 14: see Stec.
46. I invited submissions from the Secretary of State on whether the case fell within the ambit of articles 8 or 1P for the purposes of article 14, whether there was a difference in treatment between Mrs Yates and the hypothetical man referred to in paragraph 42 above and, if so, whether it was justified. I also invited submissions on my powers in the event that I found an infringement of article 14. The Secretary of State accepts that the case falls within the ambit of article 1P on the authority of Stec and says that it is unnecessary to decide whether it also falls within article 8. It seems to me that it does, for the reasons I gave in paragraph 44 above, though I agree that that makes no difference to the outcome.
47. The Secretary of State submits that Mrs Yates and such a man would not be in analogous or relevantly similar situations, as required by case-law of the European Court of Human Rights, and that any discrimination was not on the grounds of sex. The Secretary of State adds that Mrs Yates’s circumstances were untypical: she enjoyed only 8 months of marriage followed by 6 years of widowhood. In a more typical case a wife would enjoy a longer period of marriage during which she would receive a spouse’s pension, which a man married to a woman born before 1950 would not have received.
48. The Secretary of State also submits ‘That some women are treated differently than some men as regards their entitlement to Category B pension does not mean that those differences are on the grounds of sex. It is clear from the legislation that there are a number of factors when determining entitlement to a Category B pension, and that whilst the sex of the claimant may be one of those factors it is not necessarily determinative of the claim or the amount awarded’.
50. The Secretary of State points out that differences in treatment in the pensions field have progressively been eroded over the years, as the social and economic justification for them have diminished; he points to the fact that section 48A has fully applied to men since April 2010 and that the Persons Abroad Regulations were equalised at the same time. He relies on the statement at paragraph 54 of the speech of Lord Neuberger, echoing Lord Bingham, in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63: it is for Parliament to decide where lines are to be drawn and that the existence of hard cases falling on the wrong side of one do not invalidate a rule if, judged in the round, it is beneficial.
51. The Secretary of State also relies on the decisions of the Human Rights Court in Dickie v United Kingdom (11581/02) and Collingborn v United Kingdom (13913/05), decided on 13 November 2008. In both cases widowers had been ineligible for a Category B retirement pension under section 51 because they were not themselves over pensionable age when widowed; they complained that women in their position would have been eligible under section 48A. The Court found the complaints inadmissible, reasoning that the more favourable treatment of female survivors had an historical justification and was being progressively eliminated; the State had a margin of appreciation and it could not be said that fuller equalisation should have been achieved earlier.
52. Mr Yates submits that Mrs Yates was in an analogous situation to the hypothetical man; he argues that her entitlement to a spouse’s pension is not a distinguishing factor since a survivor’s pension is a different type of pension. He says that the case is analogous to Wessels-Bergervoet v Netherlands (34462/97, 4 June 2002). In that case a married couple had always lived in the Netherlands but the husband had worked in Germany for 19 years, with the result that he was covered by German rather than the Netherlands state pension scheme during that period. When he reached pensionable age, he received a reduced Dutch pension (but presumably received an element of German pension as well). However, when the wife reached state pensionable age she too received a reduced level of Dutch pension. Entitlement under the pension scheme was not dependent on having made contributions and all residents of the Netherlands were insured under it, but this was subject to a rule that a married woman was not insured under the Dutch scheme unless her husband was also. Despite having resided continuously in the Netherlands, the wife was not insured under the scheme while her husband worked in Germany.
53. The difference in treatment only affected a subgroup of women: those whose husbands had worked abroad. The Human Rights Court nevertheless treated the case as one of discrimination on grounds of sex, held that ‘very strong reasons would have to be put forward before it could regard a difference in treatment based exclusively on sex and marital status as compatible with the Convention’ (paragraph 49) and rejected the Government’s submission based on the historical treatment of married women. In particular, the law had been changed in 1985 to give women pension entitlement independent of their husband’s contribution record, yet ‘no measures were taken to remove the discriminatory effect of the former legal rules’ (paragraph 53). The difference in treatment as between married women and married men ‘was not based on any objective and reasonable justification’ (paragraph 54).
54. Mr Yates reminds me of some Government statistics that he had produced at an earlier stage in the case. These indicate that in 2001 approximately 1,100 men and 1,500,000 women received Category B pensions, of whom some 200 men and 60,000 women received them at a frozen rate (though the document cautions that the 200 figure is subject to a high degree of sampling error). He also points out that the adverse treatment of women complained of in the present case runs counter to the policy of protecting widows that had been accepted by the Human Rights Court in Collingborn and Dickie.
55. In my view there is undoubtedly a difference of treatment, based on sex, between Mrs Yates and a man resident abroad and entitled to a pension under section 51. The Secretary of State accepts that, had Mrs Yates been a man entitled under section 51, the pension would have been Ł75.50 per week, which was the weekly rate of basic Category A pension prescribed by section 44 of the Act as amended by the 2002 up-rating order. It would have remained at that rate during the hypothetical man’s lifetime. The difference in treatment is, as far as I am aware, limited to the differential up-rating treatment. It arises because, first of all, Mrs Yates (being a woman) fell within regulation 5(3)(aa), which excluded any up-rating since the later Mr Yates’s emigration.
56. By contrast, only regulation 5(3)(c) of the Persons Abroad Regulations (as the Regulations then stood) could have applied to a male section 51 claimant. At the material time, subparagraphs (a), (aa) and (b) expressly referred only to women. Regulation 5(3)(c) would have prevented a man from benefitting from any up-rating order made after he became entitled to the pension, but would not have prevented the application of any earlier up-rating orders.
57. It seems that, when widower’s pensions were introduced in 1979, nothing was done by way of amendment to the Persons Abroad Regulations to limit up-rating of the widower’s pension by reference to the date of the deceased wife’s emigration; nor, when subparagraph (aa) was introduced in 1994, was it drafted so as to apply to male Category B pensioners. This produces the anomalous result that, while a woman’s Category A pension would be frozen as at the date of her emigration, any widower’s Category B pension payable upon her death under section 51 would be payable at the then current rate. This is in contrast to the treatment of female Category B pensioners, who do not benefit from any up-rating subsequent to their husband’s emigration.
58. The next question I have to decide is whether non-resident widowed male Category B pensioners are in an analogous position to non-resident widowed female Category B pensioners. It seems to me that they are. It is true that their respective pension entitlements will depend upon individual circumstances such as their age and their deceased spouse’s contribution record; even in identical circumstances their entitlements may differ (even leaving aside the effect of the Person Abroad Regulations), since it was a condition of section 51 that the widower was over pensionable age when widowed; a widow is not subject to that condition (and may in addition have received Category B pension during her husband’s lifetime if she reached pensionable age before widowhood).
59. But the issue is whether these differences put the men and women in a non-analogous position as regards the up-rating of their pensions. Situations are analogous if, all other things being equal, one would expect them to be treated in the same way. I am dubious about the propriety of using other differences in legislative treatment as a reason for finding situations not analogous (with the consequence that a further difference in treatment escapes examination under article 14) but, assuming that to be a legitimate approach, the differences would have to be such that one would not ordinarily expect equal treatment as regards up-rating.
60. I do not see how the fact that (leaving aside the Persons Abroad Regulations) the levels of individual pensions will differ makes the situations not analogous from the perspective of up-rating of the pensions that are being paid. Nor can the fact that some female Category B pensioners (those widowed when under pensionable age, entitled under section 48BB) would not have qualified at all if they had been male render non-analogous the situations of those men and women who have qualified. Nor can the fact that the women but not the men received Category B pension during their spouse’s lifetime. Those differences may found a case for justification of the different treatment under the Persons Abroad Regulations, but that is a question to be answered at a later stage of the enquiry. I find the situations to be analogous and turn to the question of justification.
61. In that regard I bear in mind that the justification relied on by the Secretary of State (see paragraph 49 above) is that the Regulations legitimately compensate widowers for the more advantageous pension treatment of married women, who in particular could be entitled to a spouse’s pension during their husband’s lifetime. I do not need to decide whether, in general terms, a policy of giving compensating advantages could amount to an ‘objective and reasonable justification’: the striking feature of the legislation is that this form of compensation only exists in the case of people potentially affected by the Persons Abroad Regulations. As far as I am aware, the calculation of section 48A pensions for widows and section 51 pensions for widowers was the same. The only difference was in up-rating for claimants abroad and, even allowing for sampling error, benefitted a very small number of men.
62. The Collingborn and Dickie cases remind us that 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’. Even if more favourable treatment of widowers with section 51 pensions could be a reasonable means of compensating them for other instances of less favourable treatment, I do not see how giving that treatment to something like 200 out of 1,100 male Category B pensioners, selected by the adventitious fact of residing abroad, could have a reasonable relationship of proportionality with such an aim.
63. I therefore conclude that Mrs Yates was the subject of discrimination, contrary to article 14 of the Convention and thus the Human Rights Act, in respect of her widow’s pension.
64. In my direction I invited submissions on my powers in the event that I reached that conclusion. The Secretary of State submits (in implicit reliance on section 6(2) of the Human Rights Act) that the legislation could not be read in a manner compatible with the Convention ‘without subverting the will of Parliament’.
65. Section 6(1) of the Act provides that it is unlawful for a public authority (including a court or tribunal) to act in a way incompatible with a Convention right. But section 6(2) creates an exception where a public authority is acting so as to give effect either to provisions of primary legislation which cannot be interpreted so as to be compatible with a Convention right or to provisions of secondary legislation if they are made under primary legislation which cannot be interpreted so as to be compatible with a Convention right. Parliament has in effect reserved the right to have its primary legislation enforced; the same applies to secondary legislation which it has required to be made in a particular way. That is subject only to the power of higher courts to make a non-binding declaration that the primary legislation is incompatible with the Convention.
66. I do not consider that section 6(2) applies in this case. The legislation to which I would be giving effect if I declined to decide that Mrs Yates was entitled to a widow’s Category B pension at the 2002 rate would be the Persons Aboard Regulations. They are not primary legislation and the primary legislation under which they are made – section 113 of the Contributions and Benefits Act – is itself compatible with Convention Rights.
67. I therefore conclude that section 6(1) of the Human Rights Act requires me to hold that Mrs Yates was entitled, following the death of Mr Hugh Yates, to a pension paid at the rate that would have been paid to a man who had been married to a woman whose relevant circumstances (apart from sex) were the same as those of Mr Yates.
68. I reach this conclusion without enthusiasm. The Human Rights Court has held that the freezing of the pensions of emigrants is compatible with the Convention. Regulation 5 of the Persons Abroad Regulations bore harshly on Mr and Mrs Yates because of the length of Mr Yates’s retirement abroad, during decades of high inflation, but it represents the consistent policy of successive governments and it seems somewhat anomalous that I am required to disapply regulation 5(3)(aa) judicially because of the Secretary of State’s failure to make equivalent provision for a small number of non-resident male Category B pensioners. That, however, seems to me to be the effect of the law that I am required to apply.