Carson and Others v The United Kingdom ECHR 338, was heard by the European Court of Human Rights (ECHR), (Grand Chamber) in Strasbourg on 16 March 2010 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.

Background

This is a Human Rights Act 1998 case under Article 34 of the convention:

"The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation....of rights enshrined in the Convention or one of the protocols to it."

National Insurance Contributions are paid in the United Kingdom by employees and those that are self-employed, by those who earn an income over a set limit, and by employers of those employees. It is also possible for UK nationals living abroad to make National Insurance Contributions in order that they can maintain their social security record which may lead to a larger UK state pension on retirement. Examples of the social security benefits that are paid from National Insurance Contributions include Jobseeker's Allowance; Employment and Support Allowance (formerly known as incapacity benefit; Maternity Allowance; Widow’s Pension; Bereavement benefit; State pension; Child's Special Allowance; and Guardian's allowance. All of these benefits are financed by the UK government on a "pay as you go" system from the National Insurance Fund. If there is insufficient funds then the UK government finances them out of general taxation. The National Insurance Fund was also used to partly fund the National Health Service. paras 37,38

To qualify for a UK state pension, a person needs to reach a certain age. For men, this was 65 and for women, 60. In order to qualify for a "full" UK state pension, men needed 44 National Insurance qualifying years, and women needed 39. In the 2007 Pensions Act, this was changed to 30 qualifying years for men and women. In the 2014 Pensions Act, implemented in April 2016, this was changed to 35 qualifying years for men and women. For those individuals living in the UK who do not qualify for a UK state pension - there are other social welfare benefits that they can apply for. paras 39,40

The UK government is compelled by law to increase the UK state pension annually to maintain its value as prices rise. The UK state pension increases are only available to residents of the UK - UK pensioners living abroad are not entitled to the increases. There are exceptions to this for those UK pensioners who live in countries that have negotiated bilateral social security agreements with the UK. Bilateral social security agreements cover other aspects of social welfare besides the increases to the UK state pension such as health benefits. The UK has reciprocal social security agreements with the European Economic Area countries and with a number of other disparate countries (such as the United States) Social security bilateral agreements were negotiated between 1948 and 1992. There were agreements with Australia (1953), New Zealand (1956) and Canada (1959) but these did not require payment of an up-rated UK state pension. The agreement with Australia was terminated by Australia in March 2001 because of the refusal of the UK government to uprate the state pension to UK pensioners living in Australia. In 1995, amendments to the Pensions Bill were tabled giving the increase to all UK pensioners regardless of where they lived. The cost to uprate these pensions, and also to pay for them to be backdated, was estimated to cost £4 billion which represented 0.79% of the 2008-09 Pension Budget. These amendments were defeated in both the House of Commons and the House of Lords. The 1952 International Labour Organization's Social Security Convention provides that the old age security benefit can be suspended by UK domestic law if the recipient of the old age security lives abroad. This is also supported by Article 68 of the 1964 European Code of Social Security and Article 74 of the 1990 European Code of Social Security The 1982 International Law Organization allowed that social security rights could be extended to UK pensioners living abroad subject to bilateral agreements being negotiated. A Council of Europe initiative in 2008, tried to negotiate a new framework for coordinating social security schemes but each of the countries within the European Union decided to keep the bilateral agreements that were already in place. paras 42-51

Judgment

The same 13 applicants were appealing against the decision of the European Court of Human Rights - Fourth Section case. The Court summarized the circumstances of each of the Applicants. paras. 10-24 The Court then reviewed the domestic proceedings that Carson had brought against the UK government, including Lord Carswell's dissenting opinion in the House of Lords Appeal.

The Applicants contended that their human rights had been violated under Article 1 of Protocol No. 1 - "Right to property" on its own and in conjunction with Article 14 of the Convention and 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. paras. 25–36; para 52

The ECHR Fourth Section had previously decided that the complaint under Article 1 of Protocol No. 1 taken alone was inadmissible. It also decided that Article 1 of Protocol No. 1 taken in conjunction with Article 14 was admissible, and that Article 14 taken in conjunction with Article 8 did not need to be examined. para 53

Under Article 1 of Protocol No. 1, the adding of "country of residence" in determining whether a UK pensioner should receive the annual increase to the UK state pension involved a "deprivation or interference" with the right to receiving the annual increase. In addition, the "possession" that UK pensioners have (in the UK state pension that they receive) was being eroded every year for which they did not receive the annual increase. The applicants argued that the ECHR Fourth section had only dealt with the first of the two complaints above. With respect to Article 14 taken in conjunction with Article 8 had not been heard in UK court proceedings brought by Carson (alone), and therefore should not have been dismissed so lightly in the ECHR Fourth Section. paras 54,55

The UK government argued that Article 14 taken in conjunction with Article 8 for all the applicants (other than Carson) should be declared inadmissible since they had not brought proceedings before the UK courts. Since Article 14 in conjunction with Article 8 had not been tested in the UK courts, it should be declared inadmissible to this Court. para 56

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. 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. The Court declared that Article 14 taken in conjunction with Article 8 should be inadmissible, because this had not been tested in the UK domestic courts. paras 57-60

The Court accepted that the UK government was better placed to understand "..what is in the public interest on social or economic grounds". The Court discounted the hardship that "freezing" the UK state pension had on the applicants, and thousands like them, since "any welfare system, to be workable, may have to use broad categorizations to distinguish between different groups in need". The question before the court was whether different groups of UK pensioners were in similar situations such that one group was discriminated against over the other. Article 14 by itself has no meaning in law, since it is an anti-discrimination law, without identifying who or what is being discriminated against, so, in order to be used the applicants case must be "within scope" of one or more of the underlying Article(s). The ECHR Fourth Section had found that the applicants case was within the scope of Article 1 of Protocol No. 1. The Court agrees with this assessment, and there was no argument relating to this from the UK government. The ECHR Fourth Section had agreed that "country of residence" fell within scope of Article 14. paras 61-66

The Applicants maintained that the treating of "residence" was an aspect of "personal status" and was consistent with previous decisions. 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. The UK 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. The third party, Age Concern, and Help the Aged emphasized the importance of family support in old age. The Court supported the decision by the ECHR Fourth Section in concluding that "place of residence" is an aspect of "personal status". paras 67-71

The Court understood that there were three cohort of UK pensioners - those that live in the UK; those that live abroad but in a country that has a reciprocal social security agreement with the UK; and those that live abroad but in countries that do not have reciprocal social security agreements with the UK. In addition, the UK's social welfare and pension system was primarily for UK pensioners living in the UK. The Court did not believe that the pensioners in the second and third categories could be compared against each other. para 72

The Applicants submission