“Unfortunately for a co-habiting partner to be entitled to receive a survivor’s pension, the member must have paid into the LGPS on or after1 April 2008 . The late Mr Roe left the LGPS on27 October 2003 ; therefore there is no spouse pension entitlement (sic).”
“Superannuation of persons employed in local government service, etc. (1) The Secretary of State may by regulations make provision with respect to the pensions, allowances or gratuities which, subject to the fulfilment of such requirements and conditions as may be prescribed by the regulations, are to be, or may be, paid to or in respect of such persons, or classes of persons, as may be so prescribed, being— (a) persons, or classes of persons, employed in local government service; and (b) other persons, or classes of persons, for whom it is appropriate, in the opinion of the Secretary of State, to provide pensions, allowances or gratuities under the regulations.” (a) persons, or classes of persons, employed in local government service; and (b) other persons, or classes of persons, for whom it is appropriate, in the opinion of the Secretary of State, to provide pensions, allowances or gratuities under the regulations.”
“Surviving spouse’s short-term pension 40(1) If an active or pensioner member dies leaving a surviving spouse, the spouse is entitled to a short-term pension. (2) It is payable for three months after the member’s death… … (5) Where the deceased was a pensioner member, the short-term pension is equal to his retirement pension immediately before death… Surviving spouse’s long-term pension 41(1) If a member dies leaving a surviving spouse, the spouse is entitled to a spouse’s long-term pension. (2) If the deceased was an active or pensioner member, the long-term pension is payable from the end of the period for which the short-term pension is payable. (3) The long-term pension payable on a deferred member’s death is payable from his death… … (6) If the deceased was a pensioner member, the long-term pension is equal to half of his retirement pension immediately before the date of death…”
“Survivor benefits: pensioners 36(1) If a pensioner member dies leaving a surviving spouse, nominated cohabiting partner or civil partner, that person is entitled to a pension, which shall come into payment on the day following death. (2) The pension is calculated by multiplying his total membership by his final salary and divided by 160. (3) If there is more than one surviving spouse, they become jointly entitled in equal shares under paragraph (1).”
“12. The principle of no retroactivity is fundamental to the development of pensions policy. Otherwise each evolution in the detail of pension benefits would carry a potentially huge cost in terms of accrued liabilities at the point of change, as well as higher costs accruing in the future. For instance, GAD [the Government Actuary’s Department] estimate that if all public service pension schemes extended survivor pensions to unmarried partners and backdated the change to cover all past service credits, the immediate impact on accrued liabilities would be of the order of£10 billion . Not only is it out of the question for this cost to be laid on public funds, but to make it a requirement of financing by scheme members would effectively block the option of changing scheme rules in this way, where it might for other reasons be desirable. 13. ‘No retroaction’ means that most serving employees would be able to build up only a fractional entitlement to a pension for an unmarried survivor by the time of their retirement. Retired and deferred pensioners would build up no entitlement at all. Unless this were generally understood by scheme members there would be a risk of any review or decision on survivor benefits raising false expectations. 14. No retroaction also means that where a new scheme were (sic) introduced incorporating more expensive survivor benefits financed by higher employee contributions, it would only be possible for members to transfer accrued service credits into the new scheme on less favourable terms than a year for year basis (if the rest of a scheme’s benefit provisions remained unchanged, providing one-for-one past service credits will be tantamount to a retroactive application of the new benefits).”
“2.24 In conducting a valuation of a funded or unfunded pension scheme, the scheme actuary must make many assumptions in order to put a value on the benefits that will be earned in the future - for example the longevity of members, and the rate of return that will be earned on the scheme’s assets. However, the actuaries must also consider the scheme’s rules and any relevant legislation which is in place at the time of the valuation. Actuaries would not make any allowance for any future change in the scheme rules, or in the relevant legislation, unless they were certain that this change would occur. 2.25 It follows, therefore, that any improvements to benefit entitlements which take place after the period in which they have been earned and paid for will increase the size of the scheme’s liabilities in a way which was not expected when contributions to the scheme were paid. Without any corresponding increase in the scheme’s assets, retrospective improvements such as these would, all else being equal, create a deficit in the scheme’s funding. In a funded trust based scheme, the additional cost of funding this kind of shortfall would initially fall on employers (and so in the case of public service schemes, on the Exchequer), and in some cases on scheme members. Given the potential for retrospective changes to create scheme deficits, successive Governments have maintained a policy presumption against making or mandating retrospective changes to pension schemes. This particularly applies when a pension has already been awarded, as there is then no scope for offsetting reductions in the benefits that have been awarded or for the member to make additional contributions. 2.26 When making changes to scheme rules, or to legislation which will affect the value of the members’ pension, the general position has therefore been to make these changes prospectively. This means that these changes will apply to benefits which were earned after the changes are made - but not necessarily those which are only paid in the period following any change. This avoids the risks to scheme funding that would be created if schemes are required to meet legal obligations to pay benefits which did not exist at the time those benefits were accrued.”
“We agree that any extension of survivor benefits should apply only in respect of active members. It has been the consistent policy of consecutive governments that scheme benefit improvements should as a general rule not be made retrospective but should apply from a given date in respect of future service. However, for partners’ benefits it is agreed that past membership can be taken into account, provided that the member meets the cost. You would need to formulate practical proposals to achieve this.”
“In relation to the 1997 Scheme, the Government’s position at the time this Scheme was created was that it was sufficient that Scheme members wanting to provide for unmarried partners were allowed to surrender part of their own pension and for this to be put towards a pension for their dependent after death. Further, they were entitled to leave their lump sum death grant to a person of their choice under regulation 38. I am not aware of whether or not Mr Roe took advantage of these rights.”
“82. There was no suggestion that survivors’ benefits should be retrospectively applied to pensioner or deferred members. 83. A variety of views were expressed by consultees on the introduction of cohabiting partners’ pensions, but I have reviewed the detailed spreadsheet of consultation responses running to over 200 pages and none proposed that the Government should introduce cohabiting partners’ pensions on a retrospective basis for non-active scheme members. This is also reflected in the consultation response summary document produced at the time. Unions representing scheme members, who had been particularly vocal in supporting the addition of survivors’ benefits for cohabiting partners during the stocktake, responded that they were in favour of the proposal. None proposed extending it to deferred or pensioner members. In terms of recognising past service of active members, only the GMB response argued for active members’ past service to be counted towards benefits.”
“Mr Roe’s contributions to the 1997 Scheme were set at a level which sought to fund a package entitling him to draw down his pension from the age of 50, but not for an unmarried partner to acquire survivors’ benefits. Had Mr Roe been a member of the 2008 Scheme, his contributions would have been set at a different level, which sought to fund a package which did provide for unmarried partner survivors’ benefits, but which would not have permitted him to receive his pension until he was 55.”
“30. As the LGPS schemes have evolved over time, they have been deliberately designed to provide for clear and predictable rules, and to avoid retrospectivity. Benefit entitlements are only awarded under the schemes to which a member of the schemes contributed: ie a member of the 2008 Scheme who worked until 2013 and then became deferred or retired, would not benefit from an entitlement introduced in 2014 under the 2014 Scheme (but equally that member’s entitlements would not be affected by any reductions in entitlements under the new Scheme) … 31. Members of a scheme will understand the suite of benefits they have bought into when they are active members of the scheme, as they are contributing towards the cost of these benefit entitlements through regular deductions from their salary. It would therefore be inappropriate for a member of the Scheme to be awarded a benefit introduced under a new scheme they did not contribute towards, or alternatively, to lose a pension benefit that was taken away under a subsequent scheme of which they had not become a member. The suite of pension benefits that a member of the scheme has understood and accepted, when they have agreed to regular deductions to be taken from their salary cannot be retrospectively diminished or enhanced.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“133. It is common ground that five questions arise in an article 14 inquiry, based on the approach of Brooke LJ in Wandsworth London Borough Council v Michalak[2003] 1 WLR 617 , 625, para 20, as amplified in R (Carson) v Secretary of State for Work and Pensions[2002] 3 All ER 994 , 1010, para 52;[2003] 3 All ER 577 . The original four questions were: (i) Do the facts fall within the ambit of one or more of the Convention rights? (ii) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (iii) Were those others in an analogous situation? (iv) Was the difference in treatment objectively justifiable? Ie, did it have a legitimate aim and bear a reasonable relationship of proportionality to that aim? 134. The additional question is whether the difference in treatment is based on one or more of the grounds proscribed—whether expressly or by inference—in article 14. The appellant argued that that question should be asked after question (iv), the respondent that it should be asked after question (ii). In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided.”
“… in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such 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.”
“Lord Walker offered the simile of a series of concentric circles and suggested that these core grounds fell within the circle of the narrowest diameter. But then there was a wider circle which included acquired characteristics, such as nationality, language, religion and politics. Indeed, so Lord Walker suggested, there was an even wider circle which included, for example, the homeless appellant then before the House; which also included the complainant in the Carson case 51 EHRR 369, who had chosen a particular country of residence; and which even included the complainant in Sidabras v Lithuania(2004) 42 EHRR 104 , who had previously been employed by the KGB. The value of Lord Walker’s simile lies in what he then added[2009] AC 311 , [5]: ‘The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify.’” ‘The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify.’”
“55. The proposition that not all possible grounds of discrimination are equally potent is not very clearly spelled out in the jurisprudence of the Strasbourg Court. It appears much more clearly in the jurisprudence of the United States Supreme Court, which in applying the equal protection clause of the 14th Amendment has developed a doctrine of "suspect" grounds of discrimination which the court will subject to particularly severe scrutiny. They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim. … 58. In its judgments the European Court of Human Rights often refers to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds. This appears, for instance (in relation to cases of discrimination on the ground of sex) in Abdulaziz, Cabales and Balkandali v United Kingdom(1985) 7 EHRR 471 , 501, para 78; Schmidt v Germany(1994) 18 EHRR 513 , 527, para 24; Van Raalte v Netherlands(1997) 24 EHRR 503 , 518-519, para 39. When Harris, O'Boyle and Warbrick's valuable work, Law of the European Convention on Human Rights, was published in 1995, the authors recognised that the Strasbourg Court had its own suspect categories, identifying them as discrimination on the grounds of race, gender or illegitimacy. Since then religion, nationality and sexual orientation have, it seems, been added: see Jacobs and White, European Law of Human Rights, 3rd ed (2002), pp 355-6, citing Hoffmann v Austria(1994) 17 EHRR 293 , 316, para 36; Gaygusuz v Austria(1997) 23 EHRR 364 , 381, para 42 and Salgueiro da Silva Mouta v Portugal(2001) 31 EHRR 1055 , 1071, para 36 …”
“In practice, the analysis carried out by the European Court of Human Rights usually elides the second element—the comparability of the situations—and focuses on the question whether differential treatment is justified. This reflects the fact that an assessment of whether situations are “relevantly” similar is generally linked to the aims of the measure in question: see, for example, Rasmussen v Denmark(1984) 7 EHRR 371 , para 37.”
“It is always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation.”
“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”
“… it is now clear that, while this criterion may sometimes be apt to the process of answering the first question, and perhaps also the second and third questions, it is irrelevant to the question of fair balance, which, while free to attach weight to the fact that the measure is the product of legislative choice, the court must answer for itself: see In Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill[2015] UKSC 3 ,[2015] AC 1016 , para 46, Lord Mance.”
"Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position that, even with the broad margin of appreciation afforded to the state, the court will conclude that the policy is unjustifiable."
“… these are not analogous situations. Though in some fields, the de facto relationship of cohabitees is now recognised, there still exist differences between married and unmarried couples, in particular, differences in legal status and legal effects. Marriage continues to be characterised by a corpus of rights and obligations which differentiate it markedly from the situation of a man and woman who cohabit.”
‘However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter it.’
“The court considers that the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government.”
“63 Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected byArt.12 of the Convention and gives rise to social, personal and legal consequences. In Shackell, the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors' benefits, since “marriage remains an institution which is widely accepted as conferring a particular status on those who enter it”
“69. The Court does not accept the applicant’s suggestion that her relationship with Mr A., being in societal terms equal to a marriage or a registered partnership, should attract the same legal consequences as such formalised unions. States are entitled to set boundaries to the scope of testimonial privilege and to draw the line at marriage or registered partnerships. The legislature is entitled to confer a special status on marriage or registration and not to confer it on other de facto types of cohabitation. Marriage confers a special status on those who enter into it; the right to marry is protected byArticle 12 of the Convention and gives rise to social, personal and legal consequences (see, mutatis mutandis, Burden v. the United Kingdom [GC], no. 13378/05, § 63, ECHR 2008-...; and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 72, ECHR 2010-...). Likewise, the legal consequences of a registered partnership set it apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of such a legally binding agreement between the applicant and Mr A. renders their relationship, however defined, fundamentally different from that of a married couple or a couple in a registered partnership (see Burden, cited above, § 65). The Court would add that, were it to hold otherwise, it would create a need either to assess the nature of unregistered non-marital relationships in a multitude of individual cases or to define the conditions for assimilating to a formalised union a relationship characterised precisely by the absence of formality.”
“… the decision whether a married and unmarried couple are in an analogous situation must be made in the light of the scheme under examination. By the end of 2003 unmarried couples were being treated substantially the same as married couples for the purposes of the occupational pension scheme and the government had announced that it would by 2005 be treating them the same for the purposes of the 2005 Order. This distinguishes the present case from the situation in Burden’s case 47 EHRR 38. Thus in 2004 it would, in my view, be wrong to say that they were not, in the context of armed forces benefits, in an analogous position for the purposes of article 14.”
“90 I agree with the judge that, in the context of bereavement damages under section 1A of the FAA, the situation of someone like Ms Smith, who was in a stable and long-term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of article 14 in conjunction with article 8. In the context of this particular scheme, it is not the special legal status and legal consequences of marriage and civil partnership that are material, in the sense of providing a rational distinction with other people and relationships: cf, for example, Burden’s case, in which the ECtHR rejected the complaint of two unmarried sisters, who had lived together all their lives, that the liability to inheritance tax payable on the death of one of them, which would not be faced by the survivor of a marriage or civil partnership, would violate their rights under article 14 read with A1P1. Rather, it is the intimacy of a stable and long-term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees. 91 In making that analogy, it is plainly material that Parliament has treated 2 years + cohabitees as being in a stable and long-term relationship comparable to that of spouses and civil partners for the purposes of dependency damages, and that neither in Parliament nor in any evidence before the court has any member of the Government provided any justification for the different treatment of 2 years + cohabitees under section 1A. As the judge said [2017] PIQR P4, paras 34 and 109 the Secretary of State’s position has a degree of incoherence.”
“The Shackell and Burden cases were decisions in the context of taxation and social benefits, where the right to which the alleged discrimination related was the right to protection of property under article 1 of the First Protocol to the Convention. The present appeal arises in the different context of the right to respect for private and family life, in relation to which it is clear that distinctions between married and unmarried persons may be unjustifiably discriminatory.”
“27. … This applicant differs from a married father only as regards the issue of marital status and may, for the purposes of this application, claim to be in an relevantly similar position. 28. The justification for the difference in treatment relied on by the Government is the special regime of marriage which confers specific rights and obligations on those who choose to join it. The court recalls that it has in some cases found that differences in treatment on the basis of marital status has had objective and reasonable justification … It may be noted however that as a general rule unmarried fathers, who have established family life with their children, can claim equal rights of contact and custody with married fathers … In the present case, the applicant has been acknowledged as the father and has acted in that role. Given that he has financial obligations towards his daughter, which he has duly fulfilled, the court perceives no reason for treating him differently from a married father, now divorced and separated from the mother, as regards the tax deductibility of those payments. The purpose of the tax deductions was purportedly to render it easier for married fathers to support a new family; it is not readily apparent why unmarried fathers, who undertook similar new relationships, would not have similar financial commitments equally requiring relief. 29. The court concludes therefore that there has been a violation ofarticle 14 of the Convention in conjunction with article 1 of the First Protocol in this case.”
“… it is unhelpful to look at the terms of a defined benefit pension scheme from the point of view of one particular member. The scheme has to be designed and costed by reference to its coherence as a whole. The funding of the scheme has been designed to fund those benefits accrued at the point at which the scheme is to commence, and estimated to accrue over the lifetime of the scheme on the basis of the best available assumptions at the time.”
“… the Court considered that no discrimination was disclosed by legislative measures being prospective only or by a particular date being chosen for the commencement of a new legislative regime … In this regard, it has noted that the use of a cut-off date creating a difference in treatment is an inevitable consequence of introducing new systems which replace previous and outdated schemes.”
“74. There may be differences of view about whether “age” is a suspect ground for discrimination, requiring a more intense scrutiny, or whether “old age”, which is not quite the same, can be. But the grounds of differentiation here, not wholly characterised as those of age, are not suspect grounds. The grounds of difference do not arise because someone is above or below a particular age, but because the introduction of changes which are not directly age related are defined by dates, and years of service. The drawing of lines, by reference to dates, around schemes which help some and not others is an inevitable part of many legislative or policy changes; this is the more so where a past disadvantage or even wrong is being remedied retrospectively. Of course, this means that either the older or the younger will be affected; the date itself will import an indirect differentiation on age grounds. But that is a weak starting point for an assertion of indirect discrimination on age grounds. In any event, if there is a rational basis for the selection of the date as at which the changes are made, that disposes of the Article 14 challenge.”
“89 At the end of the day this case, in my view, falls squarely within the now well-established principle that where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that the discrimination is not justified. Whatever the position today, historically the distinction in the war pension scheme between married and unmarried partners and between unmarried partners who fell within the very narrow criteria for a pension and other unmarried partners was justified. In 2003 the government recognised that the distinction was no longer justified, altered the occupational pension scheme prospectively and announced its intention to make changes to the war pension scheme from some time in the future but also prospectively. The decision, from what point in time unmarried partners are put in an analogous position to spouses in the field of pensions, is a decision for the government and is a decision with which the courts will not normally interfere. In the words of Laws LJ in Carson’s case , para 73 (referred to at para 51 above): ‘In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest.’” ‘In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest.’”
“22. Mr Lask also pointed out that the status which was the basis of the difference in treatment – being a “common law” as opposed to a legal spouse – was not a “suspect ground” in the sense explained by Lord Hoffmann in the well-known passage of his speech in R (Carson) v Secretary of State for Work and Pensions[2006] 1 AC 173 (see paras. 15-16 (pp. 182-3)), and that the court could and should apply a less rigorous standard of review. He referred us to a similar passage in the judgment of the ECtHR in Bah [v UK(2012) 54 EHRR 21 ], where it said (again, at para. 47 (p. 790)): “The Court recalls that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. As observed above … immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. In the applicant's case, while she entered the United Kingdom as an asylum seeker, she was not granted refugee status. She cannot therefore be described as a person who was present in a Contracting State because, as a refugee, she could not return to her country of origin. Furthermore, she subsequently chose to have her son join her in the United Kingdom. Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality.” “The Court recalls that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. As observed above … immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. In the applicant's case, while she entered the United Kingdom as an asylum seeker, she was not granted refugee status. She cannot therefore be described as a person who was present in a Contracting State because, as a refugee, she could not return to her country of origin. Furthermore, she subsequently chose to have her son join her in the United Kingdom. Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality.”
“2.26 When making changes to scheme rules, or to legislation which will affect the value of the members’ pension, the general position has therefore been to make these changes prospectively … This avoids the risk to scheme funding that would be created if schemes were required to meet legal obligations to pay benefits which did not exist at the time that those benefits were accrued.”
“The guiding principle is that members of public service pension schemes should receive the benefits which they are promised during their service in return for that service and their contributions to the scheme. Explicitly, the scheme does not promise that years after members have moved to another employer or retired, their benefits will be enhanced to reflect what is judged reasonable to recruit and retain future generations of public servants in different social climates.”
“…the allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another.”