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Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> GM v Secretary of State for Work and Pensions (RP) (Human rights law, Retirement pensions - article 14 (non-discrimination) - increases for spouse or dependant) [2022] UKUT 85 (AAC) (23 March 2022)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2022/85.html
Cite as: [2022] WLR(D) 462, [2023] AACR 2, [2022] UKUT 85 (AAC), [2023] PTSR 272

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GM v Secretary of State for Work and Pensions (RP) [2022] UKUT 85 (AAC) [2023] AACR 2 (23 March 2022)


Category B retirement pensions; Entitlement; Indirect discrimination; Pre-2008 Married women; Time limits; Social Security (Claims and Payments) Amendment Regulations 2008

The appellant was born in 1938 and reached the then state pension age for a woman (60) in 1998. She applied for and received her own Category A pension from January 1998. This was paid at a reduced rate as she did not have a full national insurance record. The appellant’s husband was born in 1935 and attained the then state pension age for a man (65) in 2000. He claimed and received his Category A pension in August 2000, a little over 18 months after the appellant.

The appellant qualified for receipt of a Category B pension, based on her husband’s national insurance record, to top up her Category A pension. She was one of the group of Pre-2008 Married Women and was required to make a claim for the Category B pension, under the Social Security Administration Act 1992 section1(1), to obtain that additional pension. She did not make such a claim until December 2017. She was awarded the Category B pension backdated to 12 months, the maximum period allowable under the Social Security (Claims and Payments) Regulations 1987.

The appellant argued that the requirement for a beneficiary to make two claims for their state pension indirectly discriminated against women in breach of ECHR Article 14 read with Article 1 Protocol 1 because more women than men sought to take advantage of their spouse’s contribution record and therefore the obligation to make a second claim for a state pension fell disproportionately on women. Accordingly, she claimed that on human rights grounds, her entitlement should be backdated to 8 August 2000, the date she qualified for receipt of a Category B pension. On the statutory construction ground, she contended that her entitlement to a Category B pension should be backdated to 17 March 2008 (being the date from which the need to make a separate claim was removed for Post-2008 Married Women by virtue of a 2008 amendment).

Held, dismissing the appeal, that:
1. the words “becomes entitled” in regulation 3(1)(cb) of the Social Security (Claims and Payments) Regulations 1987 (and as amended in 2008) referred, on their natural meaning, to something occurring after the regulation came into force, namely, the spouse or civil partner gaining entitlement to a category A pension. Accordingly, on a proper construction of regulation 3(1)(cb), the exception to the requirement to make a claim for Category B pension applied only to those whose spouses became entitled to a Category A pension on or after 17 March 2008. That interpretation was supported by the legislative and policy context and was also consistent with the presumption against retrospectivity (paragraphs 68–72, 75, 79).
2. in so far as the claimant’s allegation of discrimination on grounds of sex, contrary to article 14 of the Human Rights Convention, was based on a failure to make an adjustment or an accommodation for women applying for a Category B pension by removing the obstacle of making a second application for benefits, that amounted to a claim that she ought to be treated differently from others whose situations were different, namely those who had not already made a first claim for benefit. However, that claim had to fail because the claimant had not been placed at a disadvantage by the application of the rule about which she complained and/or there had not been relevant similarity of treatment. If anything, as the claimant already had a Category A pension, she was at an advantage compared to those claiming such a pension for the first time and it followed that there was no cause to treat her differently from such persons (95–99, 102). Thlimmenos v Greece 31 EHRR 15, ECtHR (GC) and R (Drexler) v Leicestershire County Council [2019] ELR 412 applied.
3. even assuming that the claimant’s position as a member of the cohort of pre-2008 married women gave her a “status” for Article 14 purposes, she was still unable to establish direct discrimination on the basis of the difference in treatment between that cohort and the cohort of post-2008 married women because the “other status” that had been identified was inextricably tied into the introduction of a new legal regime. Since the two cohorts were subject to different legal regimes they were not in a relevantly similar situation to each other for the purposes of the Article 14 comparison. In any event, the difference in treatment was justified given that (i) the 2008 amendments represented a highly technical change to the rules governing the making of claims to retirement pensions, (ii) they were made in circumstances where, under the existing system, the onus was on the individual to make a claim for benefit and the department’s IT systems had previously lacked the functionality to identify potentially eligible cases, whereas the new more automated systems provided such a capability, so improving administrative efficiency, but (iii) to embark on a manual process retrospectively to bring other claimants within the scope of the change would not have been consistent with efficient administration (paragraphs 105, 108, 109, 131–133).

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