5: Landmark challenge to increase in women’s state pension age dismissed by High Court

In R (on the application of Julie Delve and Karen Glynn) v Secretary of State for Work and Pensions, the High Court rejected claims that the mechanism used to increase the state pension age (SPA) for women born in the 1950s discriminated against them on grounds of age, sex or both combined.

The claimants in this case were affected by legislation implemented between 1995 and 2014 which equalised SPA by 2018 by steadily increasing the SPA for women from age 60 to age 65. Since then, further measures have been enacted to increase SPA to 68 for both sexes.

Backed by the campaign group BackTo60, the claimants brought judicial review proceedings against the government alleging that the changes amounted to unlawful discrimination on the grounds of age, sex or both combined. They argued that although the legislation had been intended to equalise the position of women and men, it had not achieved that aim and had exacerbated pre-existing inequalities suffered by women, particularly those born in the 1950s. The claimants also argued that the Government had failed to provide adequate notice of the changes.

The High Court dismissed all the claims. As regards age discrimination, the High Court rejected the argument that the legislation and, in particular, the transitional taper provisions which gradually increased the SPA for women to achieve equalisation, breached the European Convention on Human Rights. The Court noted that case law has established that governments can introduce a new legislative scheme effecting changes from a given date based on age, and concluded that, even if the Government’s policy had been discriminatory, it could be justified as the legislation had a legitimate foundation and purpose. The High Court also concluded that there was no direct sex discrimination because the legislation does not treat women less favourably than men, but equalises a historic asymmetry between men and women. It therefore corrects historic direct discrimination against men. Nor was the change indirectly sex discriminatory, because removing the differential in the SPA did not cause the disadvantages suffered by women, as the disadvantages already existed and are rooted in traditions and cultural norms meaning women did not have the same work expectations or opportunities as men of the same age.

The High Court also rejected the claimants’ claim that inadequate notice was given to them of the changes. It held that the claimants had no legitimate expectation that the SPA would not be changed without prior consultation, as no promise or representation had ever been made by Parliament to this effect. Also successive governments had engaged in extensive consultation with a wide range of interested bodies before bringing the legislation before Parliament. In addition, since Parliament had chosen not to include any specific notification measures in the legislation, no notice requirements had been breached.

The High Court was saddened by the claimants’ stories but acknowledged that its role was limited and there was no evidence that the policy choices reflected in the legislation were not open to the government to make. We understand that the claimants have recently filed for permission to appeal to the Court of Appeal and the outcome is awaited. Separately, thousands of women have  complained to the Parliamentary and Health Service Ombudsman (PHSO) about the way the Department for Work and Pensions communicated the changes in SPA. The PHSO is awaiting the outcome of the application for appeal before deciding whether to investigate these complaints.