Carson and Others v The United Kingdom ECHR 1194 was heard by the European Court of Human Rights (ECHR), Fourth Section (Lower Chamber) in Strasbourg on 4 November 2008 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.

Prior to the judgment being handed down on 4 November 2008, the judges had met privately on 3 May 2007 and 7 October 2008. On 24 January 2008, the non-governmental organization Age Concern England was granted leave to intervene as a third party.

Background

This is a Human Rights Act 1998 case on "Right to property" Article 1 of the First Protocol (Protection of Property) and Article 14 of the convention (Prohibition of Discrimination taken in conjunction with Article 8 of the European Convention on Human Rights.

The Applicants contended that the United Kingdom authorities refusal to uprate their UK state pension in line with their peers in the UK, EEA, and a number of other disparate countries such as the United States was discriminatory and therefore in breach of Article 14 taken in conjunction with Article 8 of the convention and in breach of Article 1 of Protocol No 1 on its own.

The case originated from an application against the United Kingdom of Great Britain and Northern Ireland which was lodged with the Court under Article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen British nationals:

Name Country of Residence Narrative Carson, Annette South Africa Annette Carson spent most of her working life in the United Kingdom paying National Insurance Contributions in full, before relocating to South Africa for work purposes in 1989, where she has been resident since 1990. From 1989 to 1999 she paid further National Insurance Contributions on a voluntary basis to maintain her entitlement to a full UK state pension on retirement Jackson, Bernard Canada Bernard Jackson spent 50 years working in the United Kingdom paying National Insurance Contributions in full. He emigrated to Canada on his retirement in 1986 and became eligible for a UK state pension in 1987. Stewart, Venice Canada Venice Stewart spent 15 years working in the United Kingdom paying National Insurance Contributions in full, before emigrating to Canada in 1964. She became eligible for a UK state pension in 1991. Kendall, Ethel Canada Ethel Kendall spent 45 years working in the United Kingdom paying National Insurance Contributions in full before retiring in 1976. She became eligible for a UK state pension in 1973, and she emigrated to Canada in 1986. Dean, Kenneth Canada Ken Dean spent 51 years working in the United Kingdom paying National Insurance Contributions in full, before retiring in 1991. He became eligible for a UK state pension in 1988, and emigrated to Canada in 1994. Buchanan, Robert Canada Robert Buchanan spent 47 years working in the United Kingdom paying National Insurance Contributions in full, before emigrating to Canada in 1985. He became eligible for a UK state pension in 1989. Doyle, Terence Canada Terrence Doyle spent 42 years working in the United Kingdom paying National Insurance Contributions in full, before retiring in 1995 and emigrating to Canada in 1998. He became eligible for a UK state pension in 2002. Gould, John Canada John Gould spent 44 years working in the United Kingdom paying National Insurance Contributions in full, before retiring and emigrating to Canada in 1994. He became eligible for a UK state pension in 1998. Dancer, Geoff Canada Geoff Dancer spent 44 years working in the United Kingdom paying National Insurance Contributions in full, before emigrating to Canada in 1981. He became eligible for a UK state pension in 1986. Hill, Penelope Australia Penelope Hill was born in Australia in 1940 and she remained an Australian national. She lived and worked in the United Kingdom between 1963 and 1982, paying National Insurance Contributions in full, before returning to Australia in 1982. She made further National Insurance Contributions for the tax years 1992–1999 and became eligible for a UK state pension in 2000. Between August 2002 and December 2004 she spent over half her time in London. Shrubshole, Bernard Australia Bernard Shrubshole's National Insurance contributions record in the United Kingdom qualified him for a full basic UK state pension in 1998. He emigrated to Australia in 2000. Markiewicz, Lothar Australia Lothar Markiewicz spent 51 years working in the United Kingdom paying National Insurance Contributions in full, and became eligible for a UK state pension in 1989. In 1993 he emigrated to Australia. Godfrey, Rosemary Australia Rosemary Godfrey spent 10 years working in the United Kingdom between 1954 and 1965 and paying National Insurance Contributions in full, before emigrating to Australia in 1965. She became eligible for a UK state pension in 1994. She is ineligible for any old age security benefits from the Australian Government, and is thus dependent on her UK state pension as her only source of income.

Judgment

The court reviewed the three United Kingdom hearings brought by Carson:

a). Administration Court of the Queen's Bench Division in the High Court of Justice before the Honorable Mr. Justice Burnton – 2002. paras. 24-28 b). Court of Appeal (Civil Division) in the Supreme Court before Lord Justice Brown, Lord Justice Laws, and Lord Justice Rix – 2003. paras. 29-31 c). Appellate Committee of the House of Lords before Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell – 2005. paras. 32-36

The Court stated Lord Carswell's dissenting opinion: "How persons spend their income and where they do so are matters for their own choice. Some may choose to live in a country where the cost of living is low or the exchange rate favorable, a course not uncommon in previous generations, which may or may not carry with it disadvantages, but that is a matter for their personal choice. The common factor for purposes of comparison is that all of the pensioners, in whichever country they may reside, have duly paid the contributions required to qualify for their pensions. If some of them are not paid pensions at the same rate as others, that in my opinion constitutes discrimination for the purposes of Article 14 ...”.

The UK state retirement pension is a contributory benefit paid when a UK pensioner retired based on the number of social security contributing years. para 37 The system in the UK allows for annual increases to the UK state pension based on the inflation rate in the UK. para 38 All pensioners living in the UK receive this increase as well as UK pensioners resident in certain other countries. paras 39,40

Each year, via secondary legislation known as Statutory Instruments, legislation is passed in the UK that sets out in Regulation 5 who should be restricted from receiving the annual increase to the UK state pension: "Regulation 5 of the Social Security Benefit (Persons Abroad) Regulations 1975(7) (application of disqualification in respect of up-rating of benefit) shall apply to any additional benefit payable by virtue of the Up-rating Order." paras 41, 42.

Those UK pensioners living in the European Union or a country with whom the UK has negotiated a social security reciprocal agreement will also receive the same increase as those pensioners living in the UK paras 43-45. However, according to the Third Report (January 1997) of the House of Commons Social Security Committee the existence of a bilateral agreement is not necessary for the annual uprating to be paid since this is regulated purely by domestic legislation. Uprating is not applied to pensioners living in those countries that do not have these bilateral agreements in place. para 46 The report also states:

"It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for up-rating". para 47,

and Minister of State (Jeff Rooker), on 13 November 2000, in a statement to the House of Commons 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 a country 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 47

The Court determined that international law provisions support the UK Government's decisions to exclude a person's right to a benefit:

"as long as the person concerned is absent from the territory of the Contracting Party concerned". paras 48,49

Many countries only pay benefits to those residing in that country. The UK is unique in paying the benefit to some expatriates whilst excluding others, purely based on country of residence. para 50.

Witness statements have been submitted by Australian civil servants (British pensioners living in Australia do not receive the annual increase) highlighting the impact on the 220,000 UK pensioners living there which the Australian government see as unlawful discrimination. As a result of this, in 2001, the Australian government terminated their social security bilateral agreement with the UK. In contrast, the Australian pensioners living in the UK have their Australian state pension uprated in the same way as if they had remained in Australia. para 51

Witness statements have also been submitted by Canadian civil servants. In Canada, there are 151,000 UK pensioners who are also impacted since Canada does not have a social security reciprocal arrangement with the UK. The Canadian government also believe that the UK is discriminating against UK pensioners living there, which is in violation of the Canada/United Kingdom Social Security Convention. para 52

The Applicants position

The Applicants contended that the entitlement to a basic UK state pension is a "possession" within Article of Protocol 1, and the UK 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 social security reciprocal agreement with the UK, and therefore they lived in "frozen countries" since their UK state pension was "frozen" at the value first received. 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 and therefore it had less buying power year on year.

The Applicants also contended that Article 1 or Protocol 1, in conjunction with Article 14 also applied and they believed that previous interpretations of case law had been too narrow and superseded by more recent case law. Whilst the UK 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 UK government.