Court of Appeal rejects challenge to equalisation of state pension age between sexes 

Julie Delve and Karen Glynn, who were born in the 1950s, argued that the changes to the law constituted unjustified direct discrimination on grounds of age and represented less favourable treatment of those born on or after 6 April 1950.  

The appeal was heard before the Master of the Rolls, Sir Terence Etherton, sitting with Lord Justice Underhill and Lady Justice Rose. 

Exacerbated pre-existing inequalities 

The pension age for women was lowered from 65 to 60 by the Old Age and Widows’ Pensions Act 1940. Between 1995 and 2014 the UK Parliament legislated to equalise the State Pension Age between men and women, a move described in a 1993 White Paper as intended to address “the last glaring inequality in our treatment of men and women”. 

The Pensions Act 1995 staggered the advancement of pension age by reference to age cohorts, with all women born after 6 April 1955 attaining a pension age at 65. The Pensions Act 2011 brought the increase of SPA from 65 to 66 forward by 6 years, so people born between 6 October 1954 and 6 April 1960 would attain a pension age at 66. 

The SPA was further postponed by the Pensions Act 2007 for those born on 6 April 1959 or later, with the Pensions Act 2014 introducing a requirement for regular review of the SPA to maintain “a given proportion of adult life in receipt of state pension”. 

The first and second appellants were born in 1958 and 1956 respectively. This gave them a state pension age of 65 under the 1995 Act, which increased to 66 by operation of the 2011 Act. They were unaffected by the 2007 and 2014 Acts. 

The essence of the appellants’ argument was that the legislation had not achieved its aim of addressing inequality, as it exacerbated pre-existing inequalities suffered by women, particularly of their generation, deriving from limited work expectations and the assumption of a home caring role.  

The appellants’ claim was previously rejected by the Divisional Court, which held that the payment of state pension did not come within the ambit of EU law on age discrimination and were excluded from the scope of the Equality Directive of 2000. 

It was submitted for the appellants that the legislation gave rise to direct discrimination on grounds of age contrary to article 14 of the ECHR, as well as indirect discrimination on grounds of sex or of sex and age combined. They also claimed that the respondent, the Secretary of State for Work and Pensions, had failed to give them adequate advance notice of this change. 

Decision-making power is very great 

In the opinion of the court, it said of the direct age discrimination arguments: “The Divisional Court were right to approach the issue on the basis that this legislation operates in a field of macro-economic policy where the decision-making power of Parliament is very great.” 

It continued: “Despite the sympathy that we, like the members of the Divisional Court, feel for the Appellants and other women in their position, we are satisfied that this is not a case where the court can interfere with the decisions taken through the Parliamentary process. In the light of the extensive evidence presented by the SSWP, we agree with the Divisional Court’s assessment that it is impossible to say that the Government’s decision […] was manifestly without reasonable foundation.” 

On whether there was indirect age or sex discrimination under the ECHR, the court said: “We do not accept that the causal link needed to establish a claim of indirect discrimination can be satisfied by [the appellants’] reasoning. If it were, then there may well be other groups with a different protected characteristic combined with age who can also show that because they have suffered disadvantage in the work place over the course of their lives, they are more reliant on a state pension than comparator groups and so were adversely affected to a greater degree by the increases in pension age since 1995. To say that it is unlawful not to provide a state pension to every such group would turn the state pension into something which it is not; another means-tested benefit.” 

It continued: “The fact that poorer people are likely to experience a more serious adverse effect from the withdrawal of the pension and that groups who have historically been the victims of discrimination in the workplace are more likely to be poor does not make it indirectly discriminatory to apply the same criterion for eligibility to everyone, if that criterion is not more difficult for the group with the protected characteristic to satisfy.” 

The court then considered whether appropriate notice of the decision had been given by the SSWP, saying: “Notification was certainly desirable and the Department recognised this through the wide-ranging notification exercises in fact undertaken.  Ms Fox’s evidence explains the numerous steps taken to publicise both generally and in a targeted way the changes to the state pension age before and after they were enacted.” 

It concluded: “The Divisional Court were entitled to conclude as a fact that there has been adequate and reasonable notification given by the publicity campaigns implemented by the Department over a number of years.” 

For these reasons and others, the appeal was refused.