Delve & Anor, R (On the Application Of) v The Secretary of State for Work And Pensions

Factual and Procedural Background

This judgment concerns a judicial review brought by a group of women born in the 1950s challenging the legislative changes to the State Pension Age (SPA) enacted between 1995 and 2014. These changes progressively equalised SPA between men and women and subsequently increased the SPA for both sexes. The Claimants contend that the transitional provisions implementing these changes constitute unlawful discrimination on grounds of age and sex, and that there was a failure to adequately inform affected women of the changes. The Defendant, representing the Secretary of State, denies these claims, arguing that the legislation is lawful, that the claims are time-barred due to delay, and that no legal duty existed to provide personal notice of changes enacted by primary legislation.

The legislative framework includes the Pensions Acts of 1995, 2007, 2011, and 2014, which progressively adjusted SPA. The 1995 Act initiated the equalisation of SPA for women born on or after 6 April 1950, with staggered increases phased in over years. Subsequent Acts accelerated and extended these changes, including raising SPA to 66, 67, and eventually 68 for later cohorts.

The Claimants seek judicial review of the mechanisms chosen to implement the Government's policy of raising and equalising SPA and challenge the adequacy of notice provided to affected women. The Defendant contends that the legislative changes were justified, that the EU law principles relied upon do not apply to social security schemes such as state pensions, and that no legitimate expectation or procedural fairness obligation to notify individuals arises in respect of primary legislation.

Legal Issues Presented

1. Whether the transitional provisions for raising and equalising State Pension Age constitute unlawful direct discrimination on grounds of age.
2. Whether the legislation constitutes indirect sex discrimination incompatible with Article 4 of EU Council Directive 79/7 and Article 14 of the European Convention on Human Rights (ECHR).
3. Whether the failure to provide adequate notice to affected women of the changes to SPA renders the legislation or its implementation unlawful under principles of legitimate expectation and procedural fairness.
4. Whether the claims are barred by delay given the passage of time since the principal legislative changes.

Arguments of the Parties

Claimants' Arguments

• The transitional provisions constitute unjustified direct age discrimination against women born on or after 6 April 1950.
• The legislation causes indirect sex discrimination by exacerbating pre-existing disadvantages faced by women, contrary to EU law and the ECHR.
• The arrangements for notice were unlawful, breaching legitimate expectations and minimum requirements of fairness under common law.
• Successive governments failed adequately to inform affected women, leaving many unaware of their revised SPA.

Defendant's Arguments

• The claims challenge primary legislation enacted over twenty years ago and are therefore misconceived and time-barred.
• State pension schemes do not constitute "pay" under EU law and are excluded from the scope of relevant EU anti-discrimination directives.
• The legislation's primary purpose was to equalise SPA and remove historic direct discrimination against men.
• No legal duty exists to notify individuals of changes enacted by primary legislation; no legitimate expectation or justiciable procedural fairness obligation arises.
• Extensive efforts, including consultation and public information campaigns, were made to inform the public of the changes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Barber v Guardian Royal Exchange Insurance Group (C-262/88) [1991] 1 QB 344	Equal pay provisions under Article 157 TFEU apply to occupational pension schemes.	Distinguished from state pension schemes, which are not "pay" and thus not covered.
Mangold v Helm (C-144/04) [2006] CMLR 43	General principle of non-discrimination on grounds of age in EU law.	Principle applies only where national rules fall within scope of EU law; not applicable to state pension legislation.
Dansk Industri (DI) v Rasmussen (C-441/14) [2016] CMLR 27	Age discrimination principle applicable only within scope of Equality Directive 2000/78.	Confirmed state pension schemes are excluded from scope; thus, principle does not apply.
HK Danmark v Experian A/S (C-476/11) [2014] 1 CMLR 42	Confirmed exclusion of social security schemes from Equality Directive.	Supported conclusion that state pension schemes fall outside EU law scope.
R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21	State pension is a possession under Article 1 Protocol 1 ECHR.	Considered in assessing alleged discrimination under ECHR Article 14.
R (Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797	Margin of appreciation and reasonableness in social security policy decisions.	Supported the view that changes to SPA are within governmental discretion and not discriminatory if not manifestly without reasonable foundation.
Ackermann v Germany (2006) 42 EHRR SE1	States can lawfully change pension schemes at a single point in time without violating non-discrimination.	Applied to reject Claimants' argument that graduated changes (taper) are unlawful.
Zammit v Malta (Application No 1046/12) (2017) 65 EHRR 17	Legislative cut-off dates with reasonable justification do not constitute discrimination.	Supported that differential treatment based on a cut-off date is lawful if justified.
Minter v United Kingdom (2017) 65 EHRR SE6	Choice of cut-off dates in new regimes falls within the State's margin of appreciation.	Reinforced that pension age changes with cut-offs are permissible.
Richards v Secretary of State for Work and Pensions (C-423/04) [2006] 2 CMLR 49	Interpretation of derogation in Social Security Directive Article 7.	Rejected Claimants' narrow interpretation of Article 7; derogation extends to equalisation of pension ages.
R v Secretary of State for Social Security, ex p Equal Opportunities Commission ("EOC") (C-9/91) [1992] 3 All ER 577	Derogation in Article 7 extends to discrimination linked to pensionable age differences.	Supported broad scope of derogation including equalisation measures.
Brachner v Pensionsversicherungsanstalt (C-123/10)	Indirect sex discrimination in pension increases.	Claimants relied on this case; court found it distinguishable and not applicable.
Essop and Others v Home Office [2017] UKSC 27	Definition and elements of indirect discrimination under Equality Act 2010.	Used to analyse the Claimants' indirect discrimination arguments.
Opuz v Turkey (2010) 50 EHRR 28	Use of CEDAW to interpret discrimination against women under Article 14 ECHR.	Claimants invoked CEDAW; court found it added nothing substantive to the case.
R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139	Limits on common law duty to consult and legitimate expectation in public law.	Applied to reject Claimants' argument for a duty to notify individuals of legislative changes.
Wilson v First County Trust (No 2) [2003] UKHL 40	Principle that there is no vested right to the continuance of law as it stood.	Supported the Defendant's argument that no legitimate expectation arises against changes in law.
Re Finucane [2019] UKSC 7	Clarification of legitimate expectation requirements and fairness test.	Applied to reject Claimants' assertion of legitimate expectation to personal notice.

Court's Reasoning and Analysis

The court began by analysing the Claimants' allegation of age discrimination under EU law. It accepted the existence of a general EU principle of non-discrimination on grounds of age but determined that this principle applies only where national rules fall within the scope of EU law. The court found that state pensions do not constitute "pay" under Article 157 TFEU and that the Equality Directive expressly excludes social security schemes from its scope. Consequently, the Claimants' EU age discrimination challenge fails.

Turning to age discrimination under the European Convention on Human Rights, the court acknowledged that state pension entitlements are possessions under Article 1 Protocol 1 ECHR. However, it relied on established case law (Ackermann, Zammit, Minter) to hold that legislative changes introducing cut-off dates for SPA equalisation do not constitute unlawful discrimination. The court rejected the Claimants' argument that the graduated "taper" mechanism was fundamentally different from a single cut-off date, finding no logical distinction.

Regarding sex discrimination, the court considered the Claimants' reliance on Article 4 of the Social Security Directive and the principle of equal treatment. It found that Article 7 of that Directive contains a broad derogation allowing Member States to determine pensionable age, whether equal or unequal, excluding such determinations from the Directive's scope. The court rejected the Claimants' narrow interpretation of Article 7 and concluded that the EU law sex discrimination claim must fail.

Under the ECHR, the court found no direct or indirect discrimination on grounds of sex or sex combined with age. It reasoned that the legislation removes a historic advantage previously afforded to women, thus equalising the position rather than discriminating. The court further held that any indirect discrimination claim failed because the disadvantages faced by women pre-existed the legislation and were not caused or exacerbated by it. Even if discrimination were found, the court concluded the legislation was justified and not manifestly without reasonable foundation, given the significant policy considerations involved.

On the issue of notice, the court acknowledged the Claimants' concerns about inadequate personal notification of SPA changes. It reviewed extensive evidence of government communication efforts, including public consultations, information campaigns, leaflets, press releases, and direct mailings beginning only after the development of adequate national databases. The court found no legal obligation to provide personal notice of changes enacted by primary legislation and rejected the Claimants' reliance on legitimate expectation and procedural fairness doctrines to impose such a duty. It emphasized constitutional principles, including parliamentary sovereignty and separation of powers, noting that courts cannot override primary legislation or impose procedural requirements on Parliament's legislative process.

Finally, the court noted the substantial delay in bringing the claim, with key legislative changes dating back over twenty years, which would be fatal to the claim in any event.

Holding and Implications

The court dismissed the Claimants' judicial review application in its entirety.

The court held that the legislative changes to State Pension Age, including the transitional provisions, do not unlawfully discriminate on grounds of age or sex under EU law or the European Convention on Human Rights. It also held that no legal duty existed to provide personal notice of changes enacted by primary legislation and that the Claimants' arguments based on legitimate expectation and procedural fairness fail as a matter of law. The court further noted that the claim was brought with undue delay, which would have been fatal regardless of merit.

The decision confirms the broad discretion of Parliament and the Government in setting social security policies and affirms the constitutional principle that courts cannot interfere with primary legislation or impose procedural obligations on Parliament's legislative process. No new legal precedent was established beyond the application of existing principles to the facts of this case. The ruling directly affects the Claimants by upholding the validity and implementation of the SPA changes as legislated.