R (Carson and Reynolds) v Secretary of State for Work and Pensions is a landmark UK labour law and Human Rights Act 1998 case on Right to property under Article 1 of the First Protocol and Article 14 of the Convention – Prohibition of Discrimination. In Reynolds case, there was also Article 8 – the right to respect for “private and family life” to consider.
Annette Carson was a UK pensioner resident in South Africa. In April 2002, she brought this case before the High Court under the Human Rights Act 1998. Carson spent most of her working life in the UK, and during that time she kept her National Insurance Contributions (NICs) record up to date. She emigrated to South Africa in 1990, but she continued paying her NICs to ensure that, by the time it came to retirement, she would be able to draw a full UK State Pension which she started drawing in September 2000. She noticed the following year that her UK State Pension was not being increased in line with her peers in the UK, and her pension was being “frozen” at the level at which she first started receiving it. Ms Carson contended that the failure of the UK Government to pay to pensioners resident in certain countries abroad the inflation uprating of their UK State pensions contravenes the European Convention on Human Rights, and that she was being discriminated against. She has found that the annual increase to the UK State Pension is payable in countries like the UK, the European Union and a number of disparate countries (the United States, for example), whilst not being payable in predominantly Commonwealth countries such as Australia, Canada, New Zealand and South Africa.
Joanne Reynolds was under 25 and living in a council flat in England. She was receiving the Jobseekers Allowance and Income Support. She received £41.35 a week and if she had been over 25 she would have received £52.20 instead. She claimed this breached Article 14 of the European Convention on Human Rights (ECHR). The Secretary of State argued that 18 to 24-year-olds earn less; most of them do not live independently; they should be encouraged to live in shared accommodation. There is welfare support for this group in other ways, and good administration depends on clear rules like this.
The points of law raised in the Carson and Reynolds cases were similar so the two cases were consolidated for the appeal to the Supreme Court and the House of Lords.
When the case was heard in the ECHR Carson was joined by 12 other litigants who, because they lived in Australia and Canada, were in a similar position to Carson.
-  EWHC 978 (Admin)– This case was heard in the Administration Court of the Queen’s Bench Division in the High Court of Justice before the Honourable Mr. Justice Burnton. Justice Burton found in favour of the Secretary of State. However, Justice Burnton gave leave to appeal. Cited as  EWHC 978 (Admin),  3 All ER 994
-  EWHC 426 (Admin)– This case was heard in the Administration Court of the Queen’s Bench Division in the High Court of Justice before the Honourable Mr. Justice Wilson, under Article 8 of the European Convention on Human Rights. Justice Wilson found in favour of the Secretary of State, but gave Reynolds leave to appeal. Cited as  EWHC 426 (Admin).
-  3 EWCA Civ 797– Two separate High Court cases were brought together for the purposes of this appeal, which was heard on 17 June 2003:
- R (Carson) v Secretary of State for Work and Pensionsfrom the Administration Court of the Queens Bench Division of the High Court of Justice in England and Wales before The Honourable Mr. Justice Stanley Burnton;
- Reynolds, R (on the application of) v Secretary of State for Work and Pensions EWHC 426 (Admin) (7th March, 2002) from the Administration Court of the Queens Bench Division of the High Court of Justice in England and Wales before Mr. Justice Wilson. Cited as: 3 All ER 577,  HRLR 36,  EWCA Civ 797
-  UKHL 37– the Carson/Reynolds appeal was heard by the Appellate Committee of the House of Lords on appeal from the Court of Appeal (Civil Division) before the Appellate Committee made up of: Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell.. Cited as:  2 WLR 1369,  AC 173, 18 BHRC 677,  1 AC 173,  UKHL 37,  UKHRR 1185,  HRLR 23,  4 All ER 545
- Application no. 42184/05– Carson was joined by 12 other litigants (from Australia and Canada) who were in the same position as Carson. The Appeal was heard by The European Court of Human Rights (ECHR), Fourth Section (Lower Chamber) in Strasbourg on appeal from the Appellate Committee of the House of Lords before Lech Garlicki (President); Nicolas Bratza; Giovanni Bonello; Ljiljana Mijović; David Thór Björgvinsson; Ledi Bianku; Mihai Poalelungi.. Cited as: 48 EHRR 41,  ECHR 1194, 48 EHRR 41
- Application no. 42184/05– Carson and the 12 other litigants appealed the decision from the ECHR Fourth Section. This Appeal was heard on the 16th March 2010 by The European Court of Human Rights (ECHR), Grand Chamber in Strasbourg on appeal from the European Court of Rights (ECHR), Fourth Section before Jean-Paul Costa (President); Christos Rozakis; Nicolas Bratza; Peer Lorenzen; Françoise Tulkens; Josep Casadevall; Karel Jungwiert; Nina Vajić; Dean Spielmann; Renate Jaeger; Danutė Jočienė; Ineta Ziemele; Isabelle Berro-Lefèvre; Päivi Hirvelä; Luis López Guerra; Mirjana Lazarova Trajkovska; Zdravka Kalaydjieva. Prior to the judgment being handed down, the judges had met privately on 2 September 2009 and 27 January 2010. Cited as: ECHR 338, 51 EHRR 13, (2010) 51 EHRR 13, 29 BHRC 22
Administration Court of the Queens Bench Division of the High Court
- Justice Burnton: “Very many of the expatriate UK pensioners who do not receive uprated pensions have a strong and understandable sense of grievance……They feel that they have been deprived of an increasingly substantial part of the fruit of their contributions……as a result, they have formed associations to press their cause for equal treatment“para 6
- Secretary of State for the Department of Work and Pensions: “Successive Governments have taken the view that the level of increases in retirement pensions relates to conditions in the UK and that it would not be right to impose an additional burden on contributors and taxpayers in the UK in order to pay pension increases to people who have chosen to become resident elsewhere in the world”.para 34
- The United Kingdom is the only OECD country that discriminates between pensioners living in different overseas countries.para 36
- Justice Burnton: “…a government may lawfully decide to restrict the payment of benefits of any kind to those who are within its territorial jurisdiction, leaving the care and support of those who live elsewhere to the governments of the countries in which they live. Such a restriction may be based wholly or partly on considerations of cost, but having regard to the wide margin of discretion that must be accorded to the government, I do not think it one that a court may say is unreasonable or lacking in objective justification”.para 73
- Justice Burnton concluded: “The remedy of the expatriate United Kingdom pensioners who do not receive uprated pensions is political, not judicial. The decision to pay them uprated pensions must be made by Parliament….I have come to the conclusion that this application must be dismissed…I anticipated that there would be an application for permission to appeal. In my judgment this is a case in which permission should be given, and I give it“.paras 76 & 77
Court of Appeal (Civil Division) in the Supreme Court
- Lord Justice Laws conceded that the current situation was “haphazard”, quoting the UK Minister of State Jeff Rooker who, on 13th November 2000, said:
“I have already said I am not prepared to defend the logic of the present situation. It is illogical. There is no consistent pattern. It does not matter whether it is in the Commonwealth or outside it. We have arrangements with some Commonwealth countries and not with others. Indeed, there are differences among Caribbean countries. This is an historical issue and the situation has existed for years. It would cost some £300 million to change the policy for all concerned…”. para 54
- The UK Government’s position had always been:
“Successive Governments have taken the view that the level of increases in retirement pensions relates to conditions in the UK and that it would not be right to impose an additional burden on contributors and taxpayers in the UK in order to pay pension increases to people who have chosen to become resident elsewhere in the world….motions to pay the annual uprating to Carson (and others in her position) were submitted to both Houses of Parliament in June and July 1995 during the passage of the Pensions Bill, which called for uprating to be paid. All were defeated by large majorities”. para 52
- The UK only uprates the State Pension where there is a legal liability to do so – this includes all UK pensioners living in the UK, the EEA, and a number of other countries where there are bilateral social security agreements in place, Whilst there are bilateral agreements with Australia (1953), New Zealand (1956) and Canada (1959), they did not include the uprating of the UK State Pension. Australia cancelled its agreement with the UK in 2001 because the UK Government would not uprate the State Pension for those UK pensioners who had emigrated to Australia. This was not an issue when the UK joined the EEC since bilateral agreements were in place for all of the EEC countries except Denmark. These bilateral agreements did facilitate the uprating of the UK State Pension.para 53
- In Reynolds case, Lord Justice Laws rejected her appeal because: “in my view, the Secretary of State has demonstrated a perfectly reasonable justification for the differential payments of Job Seekers Allowance.”
- The three Law Justices dismissed both appeals.
Appellate Committee of the House of Lords
- Lord Hoffman: Carson’s case is typical of over 400,000 United Kingdom pensioners living abroad in countries which do not have reciprocal treaty arrangements under which cost of living increases are payable. Arrangements exist for countries within the European Economic Area countries (European Union countries, Norway, Iceland and Liechtenstein) and a number of other countries such as the United States (“treaty countries”). However, there are no such treaties with South Africa, Australia, New Zealand and many other countries.para 6.
- Carson argued that she was being unfairly treated. She says she had paid the same National Insurance Contributions (NICs) as a United Kingdom resident and therefore she should receive the same pension. She is supported by associations of expatriate pensioners in South Africa and elsewhere. The case had generated a good deal of passion.para 7
- The House of Lords accepted the Secretary of State’s arguments with regards to Reynolds. Lord Walker drew on US law (San Antonio School District v. Rodriguez(1973) 411 US 1; Massachusetts Board of Retirement v. Murgia (1976) 427 US 307) and Lord Nicholls in Ghaidan v. Godin-Mendoza  2 AC 557, 568, saying they would intensely scrutinise race, sex and orientation justifications. But age was not in that. It is “a personal characteristic,” said Lord Walker, “but it is different in kind from other personal characteristics. Every human being starts life as a tiny infant and none of us can do anything to stop the passage of the years.” Lines must be drawn somewhere, and following Murgia, “drawing lines which create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.” It was also noted that the age qualification had replaced a previous unworkable qualification of householders and non-householders.
- With regard to the Reynolds case: The key issue was whether the Secretary of State had the right to deal with Job Seekers who were under 25 in a different way to those who were over the age of 25.paras 36 & 37
- The judgment of the Law Lords was 4 to 1 in favour of the Secretary of State.
- Lord Carswell agreed with the other judges and rejectedReynolds’s appeal but allowed Carson’s appeal and declared that regulation 3 of the Social Security Benefits Up-rating Regulations 2001 (SI 2001/910) was unlawful. para 104. In addition, he cited the following reasons for allowing Carson’s appeal:
- Whilst it was made clear in the Supreme Court that as far as UK law is concerned the difference in the way different cohorts of pensioners are treated is in accordance with the law, Carson and her fellow “frozen” pensioners can only hope that their appeals to logic and a sense of fair play will eventually prevail, contrary to their experience to date.para 93
- Does the impact of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as brought into play by the Human Rights Act 1998 make it unlawful for the Government to operate legislation which has such an effect?para 93
- The first question was whether Carson had been discriminated against. The UK Government maintained that her case could not be compared to other, similar cases, and therefore she had failed to demonstrate discrimination.para 96
- Lord Carswell believed that other judgments had missed the fact that Carson’s financial position cannot be directly compared with those of pensioners either in the United Kingdom or in other countries, since exchange rates, inflation rates and the cost of living vary between these countries, therefore her case could not be directly compared with theirs and that accordingly she had not been discriminated against.para 96
- “A broader approach might more readily yield a serviceable answer which corresponds with one’s instincts for justice“.para 97
- Carson and other pensioners who reside in countries in which their pensions are not uprated are unquestionably treated differently, to their disadvantage, by reason of their residence in those countries. It is a fallacy to use variation in exchange rates and the relative cost of living in different countries when comparing Carson, and other “frozen” pensioners with pensioners residing in the United Kingdom or in countries where pensions are uprated. That makes little sense. If some of them are not paid pensions at the same rate as others that that constitutes discrimination for the purposes of Article 14.para 98
- If the UK Government had submitted reasons of economic or state policy to justify the difference in treatment, then Lord Carswell would yield to its decision-making power in those fields. It has not done so. On the contrary, the reasons for the policy lie wholly in the cost of uprating. It is stated in paragraph 11 of the memorandum by the Department of Social Security (DSS) memorandum to the House of Commons Social Security Committee in the session 1996-7: “Agreeing to additional expenditure on pensions paid overseas would be incompatible with the government’s policy of containing the long term cost of the social security system to ensure that it remains affordable.”
- The UK State Pension was becoming too expensive to continue paying at the “full rate” to everyone who had paid into the social security system, so the UK Government had to find some means of keeping down the cost, and in so doing, deprived one cohort of pensioners from receiving the annual uprating.para 99
- However, once the UK Government started uprating the State Pension for some pensioners living abroad, then there can be no justification for paying some and not others and less than their peers in the UK.para 100
European Court of Human Rights (ECHR), Fourth Section
- The applicants argued that the entitlement to a basic state pension a “possession” within Article of Protocol 1, and the Government were depriving them of part of that “possession” i.e. the annual uprating. They were being denied this uprating because they lived in countries (Australia, Canada and South Africa, in the applicants case) that did not have a reciprocal agreements with the UK, and therefore they lived in “frozen countries”. All of these applicants had been adversely affected financially – because they were not receiving the annual uprating, and since the countries that they lived in had their own inflation rate, their state pension was being eroded – it had less buying power year on year.para 59
- The Applicants also argued that Article 1 or Protocol 1, in conjunction with Article 14 also applied. They believed that previous interpretations of case law had been too narrow, and superseded by more recent case law. Whilst the Government had maintained that moving abroad was a freedom of choice, for many, this was the only way they could be closer to their family. They felt that they were being unfairly discriminated against. This discrimination, based on grounds of where a person chooses to retire is central to the enjoyment of certain human rights such as the right to family life, freedom of movement, and human dignity. This is likely to have a greater impact on women retiring since, statistically, they will live longer. Given this, the court is right to scrutinise the Government.para 60
- Age Concern were a Third Party in this case – *Age Concern England had carried out a number of focus groups that identified that one of the main reasons why older (in this case, Chinese) people have not returned to their country of birth is because they would no longer receive the annual increase to their UK state pension. In addition, in terms of the “most desirable” countries for emigration, five out of the top 10 are “frozen” countries – Australia, Canada, China, New Zealand and South Africa. It would be a fair assumption that for older people, they have families in countries where the UK state pension is not uprated.para 64. Pensioners become more frail as they get older – it is important that they have a support and welfare infrastructure around them, and in many cases this will be family. If a family lives outside of the UK, then their parents are more likely join them. Institute for Public Policy Research produced a report in 2006 that showed that 20% of older people had emigrated to be with family or for personal reasons i.e. not work related. para 63
- Because the applicants were from outside the UK, it was fair and reasonable to treat them differently. Social Security benefits, of which the State Pension was one, were meant for residents of the UK such that they could enjoy certain minimum standards. Systems that existed in other countries were also tailored to individuals living in those countries.para 56
- In Carson’s House of Lord’s Appeal, Lord Hoffmann said that those in need were ” generally recognised to be national in character … it does not extend to inhabitants of foreign countries”, and that this was enshrined in domestic legislation. The Government agreed with Lord Hoffmann that it could not be the law that the United Kingdom was prohibited from treating expatriate pensioners generously unless it treated them in exactly the same way as pensioners at home.para 57
- Discrimination only occurs if similar situations are treated differently. The applicants contend that there is no difference between the three cohorts of pensioners – they all spent the same time in the UK and paid the same social security contributions into the National Insurance Fund. In addition, their need for a reasonable standard of living is the same for all three groups of pensioners. All of the domestic courts (other than Lord Carswell in the House of Lords appeal)agreed that the three groups of pensioners do not have to be treated the same when it came to uprating the state pension. para 77
- The state pension is designed to provide a minimum standard of living for those living in the UK, and the Court found that the three groups of pensioners were not the same, and therefore the Government could treat them differently. As far back as 1983, there was case law regarding a British Pensioner who had emigrated to Australia who was denied an uprated pension. In addition, in Carson’s House of Lords appeal, the Government could have made the decision to not pay any state pension to “frozen” pensioners.para 78
- When looking at all UK pensioners living overseas, the Court could not find similarity between those pensioners who were living in “frozen” countries and those living in “unfrozen” countries. Social security contributions are used for other purposes besides paying the state pension – the National Health Service, for example. Even in those cases where there is proximity between “frozen” and “unfrozen” countries – Canada and the USA, for example, there is still differences in their social security provision, taxation, rates of inflation, interest and currency exchange rates to make it difficult to compare them.para 79
- The Court considers that these differences are objective and reasonablesuch that the Government can treat them differently, even though Age Concern England made some powerful arguments as to why pensioners emigrate in the first place – ultimately, it is down to a matter of personal choice. In addition, the Government made people aware that if they moved abroad, then may be moving to a “frozen” country where there state pension would not be uprated. para 80
- The Court decided that the Government can decide which countries it wants to have reciprocal agreements with and which ones it doesn’t, based on its own economic policies, therefore, in the Court’s opinion, the Government has not violated Article 14 taken in conjunction with Article 1 of Protocol No. 1.para 81 & 82
- The court decided by six votes to 1 that there had been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No 1.
- The dissentingopinion came from the President of the Court, Lech Garlicki. He thought that the difference in treatment of different cohorts of pensioners has no objective and reasonable justification. He cited four arguments that may have led to a different conclusion:
- The UK State Pension is a compulsory system, and based on contributions; Carson and the other applicants had all paid into the same system as those pensioners living in the UK. The UK Government was happy to take these contributions, which were in turn, used to pay the State Pension to current pensioners at the time, and also the annual uprating to those pensioners. There was no difference between the contributions made by her and those of her peers in the UK. Now it was time for Carson to receive her pension, but, because she had changed her country of residence, she and the other applicants were treated differently. The UK does not incur additional costs because Carson and the other applications live abroad.
“Considerations of social justice and equity require that persons who have duly contributed towards the pensions of others should not be treated differently in the subsequent calculations of their own pension.
- All countries have inflation. Much has been made regarding the difference in costs of living, exchange rates, and inflation in different countries, and it is difficult to accept that there is a difference between the different cohorts of pensioners – those living in the UK compared to those that don’t. The current regulations appear to penalise pensioners living in “frozen” countries, even though they have made contributions to the UK social security system all of their lives. This seems to be against the principle of individual freedom and therefore seems to be unjustified.
- The system in the UK is illogical based on the statement made in November 2000 by the Minister of State, Mr Jeff Rooker to the House of Commons (para 47).
- Whilst the UK courts maintained that the Carson case is more legislative than judicial, this view does not prevail in the ECHR.
“A violation that results from legislative omissions is still withon the reach of European supervision”.
European Court of Human Rights (ECHR), Grand Chamber
- The same 13 applicants were appealing against the decision of the European Court of Human Rights – Fourth Section case with the judgment being handed down on 16th March 2010.
- The applicants argued that their following human rights had been violated:para 52
- Article 1 of Protocol No. 1– Right to property on its own and in conjunction with Article 14 of the Convention
- Article 8 of the European Convention on Human Rights in conjunction with Article 14 (six applicants)
- The applicants also argued that they were being discriminated against because they were not receiving the annual increase to their UK state pension whilst others in a similar position to them were.
- The Court maintained that, under UK domestic law, under Article 1 Protocol No. 1, the applicants do not have a right to receive the annual uprating. This had been dismissed by the ECHR Fourth Section and cannot be appealed.para 57
- The Court did not accept the UK Government’s objections to Article 1 of Protocol No. 1 for the 12 applicants that had not filed domestic proceedings in the UK, and given that Carson had failed in that regard, there was no point in them litigating in the UK.para 58
- The applicants maintained that the treating of residencewas an aspect of personal status and was consistent with Case law. In addition, their position is that whilst moving abroad is a question of “free choice” it is not so if it is driven by the need or desire to be close to family members. para 67
- The Government had conceded in the UK domestic courts that Carson’s “foreign residence” was protected under Article 14, but argued that moving abroad was a matter of choice.para 68
- The third party, Age Concern and Help the Aged, emphasised the importance of family support in old age.para 69
- The Government argued that National Insurance Contributions paid into the National Insurance Fund cannot be equated to contributions to an occupational or private pension. There are no guaranteed entitlements. para 81
- Agreed unanimouslythat the complaint under Article 14 of the Convention taken in conjunction with Article 8 inadmissible;
- Rejected unanimouslythe UK Government’s preliminary objection concerning the admissibility of the complaints of the applicants, other than Carson herself;
- Agreed, by eleven votes to sixthat there had been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
- The six dissentingjudges agreed that:
- Article 14, taken in conjunction with Article 1 of Protocol No 1 had been violated;
- Article 14 on its own had been violated;
- All of the applicants were in the same boat even though their countries of residence may be different;
- The majority approach regarding “residence” seemed self contradictory, and inconsistent with the spirit of Article 14;
- The conclusion of the majority, regarding the characteristics of UK pensioners living in the UK and those living in “frozen” countries was wrong because, other than country of residence, there is no difference between the two pensioner cohorts – they all paid into the same system; all of them are entitled to a UK State Pension which is based on the number of Contributing years;
- The majority of the judges decided that even though both cohorts of UK pensioners (those that received the annual State Pension uprating and those that didn’t) had made equal contributions to the National Insurance system that does not mean that they can be treated the same. The majority argued that the State pension has multiple sources, but those dissenting could not see the relevance of that and because both cohorts of pensioners paid into the system, they should all be treated the same. The right to a State Pension, and the right to be treated the same is based on the rules by which a pensioner receives a State Pension;
- All pensioners living abroad (whether or not they received the annual increase) had a common characteristic – their buying power was decreased every year based on the drop in currency exchange rates;
- Those pensioners who lived in the UK received inflationary increases every year. Those pensioners living abroad who received the increase, received the same increase as those in the UK regardless of the increase of the inflationary rate in their own country. For those countries that had higher inflationary rates, then UK pensioners living in those countries would find their UK State Pension depreciating compared to those pensioners living in the UK. Those pensioners living in countries like South Africa, who did not receive annual increases found that their UK State Pension was depreciating at an even faster rate. In Carson’s case this was significant. In the period 2000-2005 she found that her weekly UK State Pension had fallen by 28%. Comparing this to a pensioner living in the UK, the comparative loss increased further with time;
- Given the two cohorts of pensioners – those that received annual increases, and those that did not – the dissenting judges could see no relevant differences between the two cohorts that justified such a radical difference in the UK State Pension received. In addition, they were not persuaded by the UK Government to decide otherwise and that their argument went against the spirit of Article 14 of the Convention;
- Whilst the UK State Pension system is designed to ensure that the financial needs of pensioners living in the UK are taken into account, the dissenting judges could see no justification for treating them unfavourably and unequally. There will always be differences in the increases in inflation for each country and the impact that this has on the buying power of the State Pension. The fall in the sterling exchange rate has been consistent for over a century, and the impact that this has on UK pensioners living overseas in “frozen” countries can cause irreparable deterioration in the real value of the State Pension. The complete denial of any increases represents a disproportionate difference which cannot be justified;
- UK pensioners living overseas do not receive health benefits, such as the National Health Service, nor do they pay UK taxes – this is no reason as to why they should not receive the annual increase, since, UK taxes forgone are less than the housing, healthcare and social welfare benefits which are payable to pensioners living in the UK but not to those who live abroad.
The UK Government prevailed; Carson and the other Applicants lost their appeal and they had run out of Courts to appeal to.
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Ofer Abarbanel is a 25 year securities lending broker and expert who has advised many Israeli regulators, among them the Israel Tax Authority, with respect to stock loans, repurchase agreements and credit derivatives. Founder of TBIL.co STATX Fund.