In R (on the application of Iain Cockburn) v Secretary of State for Health [2011] EWHC 2095 (Admin), the Administrative Court scrutinised the terms of the NHS Pension Scheme which operates differently (and less generously) for members' widowers than it does for members' widows. The significance of the case is wide since a successful challenge to the NHS Pension Scheme may well have resulted in further challenges to other public sector pension schemes operating similar distinctions.

The case concerned the central question of whether the difference of treatment between these two categories of survivor was compatible with Article 14 of the European Convention on Human Rights (the Convention) (the prohibition against discrimination). After considering the background to the distinction, the Court concluded that it did have an objective and reasonable justification, based on the historical protection which had legitimately been provided to widows as a result of their traditionally weaker economic position and the progressive realisation of gender equality thereafter.

Background

Provision of pension cover for widows of employees and self-employed general medical and dental practitioners in the NHS was introduced from the inception of the NHS Pension Scheme in 1948, but was not introduced for widowers until 1975, and then only for dependent widowers. Provision for non-dependent widowers was not introduced until the National Health Service (Superannuation) (Amendment) Regulations 1989 (the 1989 Regulations), the arrangements for which have since been consolidated with the regulations governing widows and dependent widowers in the National Health Service Pension Scheme Regulations 1995 (the 1995 Regulations).

Regulations G1-G7 of the 1995 Regulations provide that the pension, received by the widow of a member of the scheme will be calculated on the basis of the member's entire pensionable service. By contrast, Regulation G7(3) provides that:

"When calculating a widower's pension, any part of a member's benefit that is based on pensionable service before 6th April 1988 will . . . be disregarded."

The introduction, in 1988, of pension cover to non-dependent widowers resulted from a period of increased pressure on the Government across the public sector. The question, of course, was where the resources would come from for such an extension. In particular, the Government was concerned that the cost of any extension of the scheme in this way should be met by the membership, not scheme employees, and that the improvements to the scheme should only operate from a forward date (i.e. without retrospective effect) so that the members who benefit from the improvements will also contribute to their provision. Accordingly, when the provision of pension benefits to non-dependent widowers was introduced in the 1989 Regulations, it was confined to being calculated on the basis of the member's service since 1988. 

Alleged breach of the Human Rights Act

The Claimant, the widower of a General Practitioner, sought judicial review of the level of his entitlement to a pension under Regulation G7 of the 1995 Regulations. It was accepted by the Defendant, the Secretary of State for Health, that his late wife's pensionable service before 1988 was discounted when it would not be in relation to a husband's service were he a woman.

The Claimant alleged that this difference of treatment was unlawful gender discrimination contrary to Article 14 of the Convention. Article 14 can only be relied on by a claimant if the potential breach of another substantive convention right can also be established. In this case the parties agreed that the Claimant's entitlement to a survivor's pension fell within Article 1 of the First Protocol to the Convention (the right to property).

In interpreting Article 14 of the Convention, the Court adopted the test set out by the European Court of Human Rights in Stec v United Kingdom (2006) 43 EHRR 47:

"Article 14 does not prohibit a Member State from treating groups differently in order to correct 'factual inequalities' between them . . . A difference of treatment is, however, 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. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, 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 and economic grounds, and the Court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation'."

Accordingly, it was for the Secretary of State to establish that the difference in treatment between widows and widowers under the 1995 Regulations was reasonably and objectively justified.

The Administrative Court's Decision

Time limits

Strict time limits apply to claims under the Human Rights Act 1998. Section 7(5) provides that:

"Proceedings under sub-section (1)(a) must be brought before the end of –

  1. the period of one year beginning with the date on which the act complained of took place; or
  1. such longer period as the court or tribunal considers equitable having regard to all the circumstances."

The Secretary of State argued that, because the Claimant's wife had died in February 2007, the time limit for bringing the case expired in February 2008, pursuant to section 7(5)(a), whereas the proceedings were not brought until January 2010. The Court found that the act complained of occurred upon the entitlement arising (i.e. February 2007), and that therefore the claim was out of time. However, the Court was persuaded that the question at hand was of sufficient public importance, in light of the estimated 600,000 beneficiaries said currently, or potentially, to be in the same position as the Claimant, that having regard to all the circumstances it was equitable to allow a longer time period to apply and for the claim to be heard.

Article 14

The Court concluded that the reasonable and objective justification for the different positions adopted for widows and widowers under the 1995 Regulations was the progressive realisation of gender equality against a background of historical protection legitimately afforded to widows. Mr Justice Supperstone found that:

  1. there is no principle that exists that required the same contributions in a pension scheme of this kind to lead to the same benefits;
  1. there is nothing illogical or unreasonable in a state-run scheme about contributions buying very different benefits for men and women during a period where there is a need to correct factual inequalities. If widows needed to be favoured up to 1989 then it was reasonable for the scheme to favour them;
  1. there is nothing illogical or irrational about leaving that state of affairs in place when there is no longer a need to correct factual inequalities, but at that time changing the position prospectively but not retrospectively; and
  1. whether or not that is appropriate is just as much a matter of judgment as with other decisions that have an effect on other interests that are engaged. A broad margin of appreciation is enjoyed by the State.

In relation to iv., of clear relevance to the question of judgment was the issue of the cost of making the improvements to the NHS Pension Scheme, and, in particular, who should bear those costs (compared with who would receive the benefits). In his exercise of that judgment, Supperstone J held that the Secretary of State's choice "will be respected, even where they involve direct discrimination on grounds of gender, unless they are 'manifestly without reasonable foundation'. In my judgment, the Defendant was fully justified in having regard to the cost of retrospective equalisation that on the basis of national policy was to be borne by current members of the scheme in circumstances where over 90% of them were opposed to bearing that costs."

Comment

The case is a useful illustration of the broad discretion which the courts afford to a public body such as the Secretary of State for Health in the exercise of difficult judgments concerning allocation of its finite resources, even in the context of a clear prima facie discrimination on the basis of gender. The Administrative Court was prepared to consider the wider historical context in which the discriminatory provision was introduced, as well as the policy surrounding the decision to end, on a prospective basis, that discrimination, as well as who should bear the cost of doing so. The decision is likely to disappoint a number of prospective claimants in similar circumstances to Mr Cockburn.