R (Carson) v Secretary of State for Work and Pensions and R (Carson & Reynolds) v Secretary of State for Work and Pensions were a series of civil action court cases seeking judicial review of the British government's policies under the Human Rights Act 1998. They related to the right to property (whether the state pension was a welfare benefit or akin to a private contract) under Article 1 of the First Protocol and prohibition of discrimination under Article 14 of the convention. The Reynolds case also considered Article 8 of the European Convention on Human Rights (ECHR), the right to respect for "private and family life", as well as Article 3 of the ECHR, the prohibition of torture, and "inhuman or degrading treatment or punishment".
Background
Annette Carson was a UK pensioner who had relocated to work in South Africa in 1989. In April 2002, she brought this case under the Human Rights Act 1998. 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, while paying the annual uprating in other countries, contravened the UK Human Rights Act of 1998 (based on the European Convention on Human Rights) on grounds of discrimination. Annual uprating to the UK State Pension is payable in countries like the UK, the European Economic Area 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 Jobseeker's Allowance and Income Support. She received less than she would have received if she had been over 25. This allegedly breached:
Article 1 of the First Protocol of the ECHR (whether the state pension was a welfare benefit or a private contract); Article 14, taken in conjunction with Article 1 of the First Protocol of the ECHR; Article 8 of the ECHR; Article 3 of ECHR.
The two claimants – Carson and Reynolds – had separate administrative court hearings in 2002, but their appeal hearing in 2003 to the Supreme Court of Judicature Court of Appeal (Civil Division) and to the House of Lords in 2005 were consolidated since the UK courts decided that the points of law raised in the administrative courts were similar.
The Carson case was pursued as a class action in the ECHR in 2008, where she was joined by twelve other applicants who, because they were resident in Australia and Canada, were in a similar position to her. Reynolds was not involved in this class action.
Chronology and judgments
R (Carson) v Secretary of State for Work and Pensions & Another
Cited as: EWHC 978 (Admin), 3 All ER 994
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 Burnton said that he understood how: "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
The response from the Secretary of State for the DWP was that successive Governments have taken the view that increases in the UK State Pension were based on economic factors within the UK, and it would be unfair on UK tax payers to incur additional taxes to support those residents that have chosen to live abroad.para 34
The United Kingdom is the only OECD country that discriminates between pensioners living in different overseas countries.para 36
Justice Burnton also stated that "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 that the decision as to whether expatriate UK pensioners received state pension benefits (including any annual increases) was a political decision rather than a judicial one, and he therefore dismissed the case, but he gave leave to appeal.paras 76 & 77
Costs were awarded against Carson.
R (Reynolds) v Secretary of State for Work and Pensions Cited as: 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.
Reynolds contended that under the 1998 Human Rights Act and the European Convention of Human Rights her Article 1 of the First Protocol, Article 14, taken in conjunction with Article 1 of the First Protocol, Article 8 of ECHR and Article 3 of the ECHR rights had been breached.
Judge Wilson decided that entitlement of Income Support is not a "possession" within Article 1 and that the demarcation line drawn by the Government i.e. between the ages of 24 and 25 were made clear by Parliament in 1987. These were extended in 1996. He concluded that it was an issue of social policy, and that the Government had demonstrated that there was "reasonable foundation" for the demarcation. It was also his opinion that: "Article 3 describes ill treatment of a depth which the level of payment to Reynolds wholly fails to reach". However, Reynolds contended that the demarcation between the age of 24 and 25 in terms of receiving state benefits was irrational. Judge Wilson disagreed, and dismissed Reynolds application.
Justice Wilson found in favour of the Secretary of State, but gave Reynolds leave to appeal.
Carson & Another v Secretary of State for Work and Pensions
Cited as: 3 All ER 577, HRLR 36, EWCA Civ 797
Two High Court cases which had been heard independently were brought together for the purposes of this appeal before the Supreme Court of Judicature Court of Appeal (Civil Division) before Lord Justice Simon Brown, Lord Justice Laws, and Lord Justice Rix which was heard on 17 June 2003: R (Carson) v Secretary of State for Work and Pensions from the Administrative Court of the Queen's Bench Division of the High Court of Justice in England and Wales before Justice Burnton; R (Reynolds) v Secretary of State for Work and Pensions EWHC 426 (Admin) (7 March 2002) from the Administration Court of the Queen's Bench Division of the High Court of Justice in England and Wales before Mr. Justice Wilson.
Lord Justice Laws conceded that the current situation was "haphazard", quoting the UK Minister of State Jeff Rooker who, on 13 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".para 54
The UK Government's position has always been that successive British governments have taken the view that any increases to the UK state pension are based on economic conditions in the UK and that it would be unfair on UK taxpayers to pay a higher level of taxes in order to pay pension increases to people who have chosen to become resident elsewhere in the world. Motions to pay the annual increases to those UK pensioners living abroad who do not currently receive these increases 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 with significant 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 agreements in place relating to the UK State Pension. Whilst bilateral agreements were agreed with Australia (1953), New Zealand (1956) and Canada (1959), they did not include the uprating of the UK State Pension. Australia cancelled its bilateral 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 rejecting Reynolds's case, Lord Justice Laws said: "in my view, the Secretary of State has demonstrated a perfectly reasonable justification for the differential payments of Jobseeker's Allowance".
The three Law Justices dismissed both appeals, but leave was given to Carson and Reynolds to appeal to the House of Lords.
R (Carson) v Secretary of State for Work and Pensions
Cited as: 2 WLR 1369, AC 173, 18 BHRC 677, 1 AC 173, UKHL 37, UKHRR 1185, HRLR 23, 4 All ER 545
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.
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. Lord Hoffman said: "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 EEA 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
The House of Lords accepted the Secretary of State's arguments with regards to Reynolds. Lord Walker and Lord Nichols referred to case law 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 "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". The key issue was whether the Secretary of State had the right to deal with Jobseeker's Allowance claimants who were under 25 in a different way to those who were over the age of 25.paras 36 & 37
It was also noted that the age qualification had replaced a previous unworkable qualification of householders and non-householders.
Lord Carswell agreed with the other judges in rejecting Reynolds's appeal but would have allowed Carson's appeal and declared that he considered regulation 3 of the Social Security Benefits Up-rating Regulations 2001 (SI 2001/910) to be unlawful.para 104 In addition, he cited a number of other for allowing Carson's appeal.paras: 96-104
The judgment of the Law Lords was 4 to 1 in favour of the Secretary of State.
Carson and Others v. The United Kingdom (2008)
Cited as: 48 EHRR 41, ECHR 1194, 48 EHRR 41