R (Carson) v Secretary of State for Work and Pensions & Another

Last updated

R (Carson) v Secretary of State for Work and Pensions & Another
CourtIn the High Court of Justice
Queen's Bench Division
Administrative Court
Full case nameThe Queen on the application of Annette Carson (Claimant) and The Secretary of State for Work and Pensions (Defendant) and The Commonwealth of Australia (Intervening Party)
DecidedMay 22, 2002 (2002-05-22)
Case history
Appealed to Court of Appeal (Civil Division) in the Supreme Court
Court membership
Judge(s) sitting The Honourable Mr. Justice Burnton
Keywords
Right to property
Prohibition of discrimination
State Pension
Frozen State Pension

R (Carson) v Secretary of State for Work and Pensions & Another [2002] EWHC 978 (Admin) was heard in the Administration Court of the Queen's Bench Division in the High Court of Justice on 22 May 2002 before the Honourable Mr. Justice Burnton. [1]

Contents

Annette Carson was the claimant, the Secretary of State for the Department for Work and Pensions (the UK Government) was the defendant and the Commonwealth of Australia was an intervening party. [2]

This was a Human Rights Act 1998 case on the "right to property" under Article 1 of the First Protocol and Prohibition of Discrimination [3] under Article 14 of the European Convention on Human Rights [4] as reflected in UK law.

Background

In April 2002, Carson brought this case before the High Court under the Human Rights Act 1998. Carson had spent most of her working life in the UK, and during that time she kept paying her full National Insurance Contributions (NICs) and UK taxes where applicable. She relocated to South Africa in 1989 for work purposes, and continued paying NICs to ensure that on retirement she would be eligible for the full UK State Pension. This she had started drawing in September 2000. She then realised that the amount she received would not be 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.

Carson contended that she was being discriminated against with regard to deprivation of the annual inflationary increase to her UK State Pension because she had relocated to South Africa for work purposes [1] para 9. She had determined that UK pensioners living in some overseas countries received the annual increase, whilst others, like her, were deprived of this annual increase.

Carson also 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 Human Rights Act 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 (EEA) 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. [5]

In addition, Carson contended that this contravened Article 14 of the convention (Prohibition of Discrimination), [4] and also that her state pension, or alternatively its uprating, were "pecuniary rights", and therefore “possessions” within the meaning of Article 1 of the First Protocol of the convention (Protection of Property). [3]

UK state pension recipients

In May 2002, there were 11.1 million pensioners in receipt of a UK state pension - 10.2 million living in the UK and 900,000 who resided abroad. Of those, 418,000 resided in countries where UK pensioners received the annual inflationary increase to their UK state pension, and 482,000 who, like Carson, resided in countries which did not receive the annual increase. [6]

Country
Summary
Number of
UK Pensioners
Average Weekly
Amount Received
(GBP) in 2002
United Kingdom10,228,74480
Abroad - Not Frozen417,81441
Abroad - Frozen482,01927
TOTAL:11,128,57776

Of the 482,000 pensioners who did not receive the annual increase to their UK State Pension, 465,000 of them resided in just 10 countries - the remaining 17,000 were spread far and wide around the world. The top 10 "Frozen" countries at that time were:


Country
Number of
UK Pensioners
Average Weekly
Amount Received
(GBP) in 2002
Flag of Australia (converted).svg Australia224,26327
Flag of Canada (Pantone).svg Canada144,81924
Flag of New Zealand.svg New Zealand38,61128
Flag of South Africa.svg South Africa34,97831
Flag of Pakistan.svg Pakistan5,91728
Flag of Zimbabwe.svg Zimbabwe4,40727
Flag of India.svg India3,95028
Flag of Yemen.svg Republic of Yemen3,15731
Flag of Bangladesh.svg Bangladesh3,13026
Flag of Nigeria.svg Nigeria1,85818
TOP 10 Totals:465,09027

Judgment

Justice Burnton stated that:

"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" [1] para 6

Carson claimed that she had not been informed that her UK state pension would be "frozen" when she decided to pay her voluntary contributions from South Africa. [1] para 7 and that the failure of the UK Government to pay her the amount of the annual uprating wrongfully deprived her part of her pension and the entirety of the uprating. [1] para 9 The UK Government also claimed that their policy decision not to pay uprating to Carson and others in her position was justified. [1] para 10 The Court believed that there were seven key issues that needed addressing: [1] para 15

  1. Is the state pension or the uprating a possession of Carson within the meaning of Article 1 of the First Protocol?
  2. If so, is the failure or refusal of the Government to pay an uprated pension to Carson a deprivation of that possession for the purposes of Article 1 of the First Protocol?
  3. If so, is that deprivation justified?
  4. If uprating is not a possession for the purposes of Article 1 of the First Protocol, is the payment of uprating to some, but not all, pensioners nonetheless within the scope of Article 14? i.e. does Carson's complaint relate to "the enjoyment of the rights and freedoms set forth in (the) Convention?"
  5. If so, what is the criterion applied to determine the differential treatment of pensioners?
  6. Is that criterion a ground "such as sex, race, ... or other status" that is, unless objectively justified, prohibited by Article 14?
  7. If so, is the differential treatment of Carson's wrongful discrimination in breach of Article 14 as compared with (i) pensioners living in the UK, or (ii) pensioners residing in countries such as the United States where the UK State Pension is uprated?

According to the Third Report (January 1997) of Social Security Committee Report: [7]

It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for uprating. [1] para 30

The report went on to say:

Surely no one would have deliberately designed a policy of paying pensions to people living abroad intending to end up where we are today....it would be clearly impractical to negotiate bilateral agreements with each of the other countries where people draw British state retirement pensions, and in any case unnecessary; a simple change in British law could enable upratings to be paid in any or all overseas countries provided the political will was there to do so. [7]

On 13 November 2000, Jeff Rooker, Minister of State, said in the House of Commons:

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. [8] [1] para 32

The UK Government stated that successive governments have limited the annual increase to the UK state pension since the increase is based on economic factors in the UK. At the same time, to pass on the increase to pensioners who have chosen to live in "frozen" countries would mean that to do so would create an additional tax burden of UK taxpayers. [1] para 34

The United Kingdom is the only OECD country that discriminates between pensioners living in different overseas countries. [1] para 36

In Corner (App. No. 11271/84), the European Commission rejected as manifestly ill-founded the complaint that the failure to pay uprating infringed Article 1 of the First Protocol and Article 14. In Justice Burnton's opinion, this case in and of itself was enough to rule in the Government's favour. [1] para 43 Justice Burnton also stated:

"...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". [1] para 73

Justice Burnton concluded that the remedy to the "frozen" UK state pension annual increase issue was a political decision and not a judicial one, and, as a result, he dismissed the application, and found in favour of the UK Government. Costs were awarded against Carson, be she was given leave to appeal. [1] paras 76 & 77

On 22 June 2002, the "frozen" pensions issue was raised in the House of Lords, and there was reference to the Carson case. [9]

This case evoked emotions around the world, with some writing to the UK Parliament in protest. [10]

Citations

Gaygusuz v Austria (1996) 23 EHRLR 230; Bennion, Statutory Interpretation, 3rd edition, at section 106, page 252; Air Canada v UK (1995) 20 EHRR 150; [11] Drozd and Janousek v France and Spain (1992) 14 EHRR 745; [12] Bankovic and ors v Belgium and others (App. no. 52207/99); Ryan v Liverpool Health Authority [2002] Lloyd's Rep Med 23; Bell v Todd [2002] Lloyd's Rep Med 12; Hooper and ors v Secretary of State for Work and Pensions [2002] EWHC 191 [13] (Admin); The Queen on the application of Reynolds v Secretary of State for Work and Pensions [2002] EWHC 426 [14] (Admin); Alconbury [2001] 2WLR 1389; [15] Müller v Austria (App. No. 5849/72, Comm. Report 1.10.75, 73 DR 19); T v Sweden (App. No. 10671/83) (1986) EHRR 269; X v Italy (App. No. 7459/76); JW and EW v UK (App. No. 9776/82); Corner (App. No. 11271/84); Skorkiewicz, Coke and Bellet v France (App. no. 4083332/98; Walden v Liechtenstein (Decision no. 33916/96); Shackell v UK (App No. 4585/99); Matthews v United Kingdom (App. No. 40302/98); Jankovic v Croatia Dec. no. 43440/98; Michalak v London Borough of Wandsworth [2002] EWCA Civ 271; [16] Human Rights: The 1998 Act and the European Convention (2000); P v UK (App. No. 14751/89); Nelson v United Kingdom (App. No. 11077/84); Murray v United Kingdom (1996) 22 EHRR 29; [17] Darby v Sweden (1991) 13 EHRR 774; [18] Havard (App. No. 38882/97); Kebilene [2000] 2 AC 326; [19] Waite v London Borough of Hammersmith & Fulham and another [2002] EWCA Civ 482; Steele Ford & Newton v CPS [1994]; Blackburn v Attorney-General [1971] 1 WLR 1037; [20] J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; Brunswick (Duke of) v. King of Hanover (1844) 6 Beav. 1; (1848) 2 H.L. Cas. 1, H.L. (E.); Mellacher v Austria [1989] 12 EHRR 391; R (Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin). [21]

See also

Further reading

- Supreme Court Appeal - 2003
- House of Lords Appeal - 2005
- European Court of Human Rights (ECHR) - Fourth Section - 2008
- European Court of Human Rights (ECHR) - Grand Chamber - 2010

Related Research Articles

<span class="mw-page-title-main">European Convention on Human Rights</span> International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.

<span class="mw-page-title-main">Extradition</span> Transfer of a suspect from one jurisdiction to another by law enforcement

In an extradition, one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdictions and depends on the arrangements made between them. In addition to legal aspects of the process, extradition also involves the physical transfer of custody of the person being extradited to the legal authority of the requesting jurisdiction.

<span class="mw-page-title-main">United Kingdom labour law</span> Rights of workers, unions, and duties of employers in the UK

United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK have a minimum set of employment rights, from Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £10.42 for over-23-year-olds from April 2023 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995. Workers must be able to vote for trustees of their occupational pensions under the Pensions Act 2004. In some enterprises, such as universities or NHS foundation trusts, staff can vote for the directors of the organisation. In enterprises with over 50 staff, workers must be negotiated with, with a view to agreement on any contract or workplace organisation changes, major economic developments or difficulties. The UK Corporate Governance Code recommends worker involvement in voting for a listed company's board of directors but does not yet follow international standards in protecting the right to vote in law. Collective bargaining, between democratically organised trade unions and the enterprise's management, has been seen as a "single channel" for individual workers to counteract the employer's abuse of power when it dismisses staff or fix the terms of work. Collective agreements are ultimately backed up by a trade union's right to strike: a fundamental requirement of democratic society in international law. Under the Trade Union and Labour Relations (Consolidation) Act 1992 strike action is protected when it is "in contemplation or furtherance of a trade dispute".

<span class="mw-page-title-main">Human rights in the United Kingdom</span> Overview of the observance of human rights in the United Kingdom

Human rights in the United Kingdom concern the fundamental rights in law of every person in the United Kingdom. An integral part of the UK constitution, human rights derive from common law, from statutes such as Magna Carta, the Bill of Rights 1689 and the Human Rights Act 1998, from membership of the Council of Europe, and from international law.

The State Pension is an existing welfare benefit that forms part of the United Kingdom Government's pension arrangements. Benefits vary depending on the age of the individual and their contribution record. Currently anyone can make a claim, provided they have a minimum number of qualifying years of contributions.

Frozen state pensions is the practice of the British Government of "freezing" UK State Pensions,, for pensioners who live in the majority of other countries, apart from the European Community countries and other countries with reciprocal agreements with the UK.

<span class="mw-page-title-main">United Kingdom constitutional law</span> Law that constitutes the body politic of the United Kingdom

The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but principles have emerged over centuries from common law statute, case law, political conventions and social consensus. In 1215, Magna Carta required the King to call "common counsel" or Parliament, hold courts in a fixed place, guarantee fair trials, guarantee free movement of people, free the church from the state, and it enshrined the rights of "common" people to use the land. After the English Civil War and the Glorious Revolution 1688, Parliament won supremacy over the monarch, the church and the courts, and the Bill of Rights 1689 recorded that the "election of members of Parliament ought to be free". The Act of Union 1707 unified England, Wales and Scotland, while Ireland was joined in 1800, but the Republic of Ireland formally separated between 1916 and 1921 through bitter armed conflict. By the Representation of the People Act 1928, almost every adult man and woman was finally entitled to vote for Parliament. The UK was a founding member of the International Labour Organization (ILO), the United Nations, the Commonwealth, the Council of Europe, and the World Trade Organization (WTO).

Article 4 of the European Convention on Human Rights prohibits slavery and forced labour. Conscription, national service, prison labour, service exacted in cases of emergency or calamity, and "normal civic obligations" are excepted from these definitions.

Article 4 – Prohibition of slavery and forced labour

Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe.

In the European Convention on Human Rights, Article 2 protects the right to life. The article contains a limited exception for the cases of lawful executions and sets out strictly controlled circumstances in which the deprivation of life may be justified. The exemption for the case of lawful executions has been subsequently further restricted by Protocols 6 and 13, for those parties who are also parties to those protocols.

Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

<i>R (Carson) v Secretary of State for Work and Pensions</i> and <i>R (Carson & Reynolds) v Secretary of State for Work and Pensions</i>

R (Carson) v Secretary of State for Work and Pensions and R 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 under Article 1 of the First Protocol and prohibition of discrimination under Article 14 of the convention. In Reynolds's case, there was also Article 8 of the European Convention on Human Rights (ECHR), the right to respect for "private and family life" to be considered, as well as Article 3 of the ECHR, the prohibition of torture, and "inhuman or degrading treatment or punishment".

Article 1 of the European Convention on Human Rights is the first article of the European Convention on Human Rights. It states that "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention".

<i>R (Tigere) v Secretary of State for Business, Innovation and Skills</i>

R (Tigere) v Secretary of State for Business, Innovation and Skills was a 2015 judgment of the Supreme Court of the United Kingdom concerning student loans in the United Kingdom.

Defence pensions are pensions paid from the Defence Services Estimates. Approximately 36 percent of amount budgeted for defence pensions is on account of defence civilians. The Defence pension bill for 2015–2016 was 54,500 crores, including pension outlay for about 400,000 defence civilians, and about Rs1000 Crores on account of allowances and establishment of Ministry of Finance personnel attached to MOD. On an average a defence civilian pensioners cost five times lesser than military pensioner. The per capita expenditure on defence civilians is approximately Rs. 5.38 Lakhs annually, in comparison with 1.38 Lakhs a year for defence pensioners paid from the defence services estimates. The per capita bill on account of defence civilian pensioners is higher mainly because they serve longer, reach the highest grades in the pay scales, are eligible for One Rank, One Pension (OROP) pensions, and are and host of allowance]. As of August 2021, SPARSH(Raksha) Pension Administration has been established under DBT(Direct Benefit Transfer) to reduce the Grievances of the Pensioners & to increase transparency Payment to Pensioners.

<i>Carson & Another v Secretary of State for Work and Pensions</i>

Carson & Another v Secretary of State for Work and Pensions [2003] EWCA Civ 797 was heard in the Court of Appeal in the Supreme Court on 17 June 2003 before Lord Justice Brown, Lord Justice Laws, and Lord Justice Rix.

<i>R (Carson) v Secretary of State for Work and Pensions</i>

R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 was heard by the Lords of Appeal in the House of Lords on 26 May 2005 before Lord Nicholls, Lord Hoffmann, Lord Rodger, Lord Walker, and Lord Carswell.

<i>Carson and Others v The United Kingdom</i> (2008) European Court of Human Rights case

Carson and Others v The United Kingdom [2008] ECHR 1194 was heard by the European Court of Human Rights (ECHR), Fourth Section 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.

<i>Carson and Others v The United Kingdom</i> (2010) European Court of Human Rights case

Carson and Others v The United Kingdom [2010] ECHR 338 was heard by the European Court of Human Rights (ECHR), 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.

<span class="mw-page-title-main">Annette Carson</span> British non-fiction writer and biographer (born 1940)

Annette Josephine Carson is a British non-fiction author specialising in history, biography and aviation, with a particular interest in King Richard III. Since 2002 she has also been an advocate for UK state pension parity for UK expatriates.

References

  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 "Carson, R (on the application of) v Secretary of State for Work and Pensions & Anor [2002] EWHC 978 (Admin)". BAIL II. 22 May 2002.
  2. Toyne, Sarah (15 March 2002). "Australia attacks UK over pensions". BBC News - Business.
  3. 1 2 3 "Protocol 1 Article 1 - Right to peaceful enjoyment of property". UK Human Rights Blog. 1 Crown Office Row barristers'.
  4. 1 2 3 "Article 14 - Anti-Discrimination". UK Human Rights Blog. 1 Crown Office Row barristers'.
  5. "Countries where we pay an annual increase in the State Pension". Department for Work and Pensions. 9 June 2014.
  6. "Department for Work and Pensions (DWP)". Stat-Xplore.
  7. 1 2 "House of Commons - Social Security Committee - Third Report". House of Commons. January 1997.
  8. Rooker, Jeff (13 November 2000). "UK/Australia Pensions". Hansard. 536. London, England: House of Commons.
  9. "Pensioners Living Abroad: Payments". House of Lords Hansard. 22 June 2002.
  10. May, Alan S. (31 December 2002). "Response to the Department for Work and Pensions' Green Paper and the Inland Revenue Review submitted by Mr Alan S May (PEN 70)". House of Commons - Select Committee on Work and Pensions.
  11. "AIR CANADA v. THE UNITED KINGDOM - 18465/91". BAIL II. 5 May 1995.
  12. "DROZD AND JANOUSEK v. FRANCE AND SPAIN - 12747/87". BAIL II. 26 June 1992.
  13. "Hooper & Ors v Secretary of State for Work and Pensions". BAIL II. 14 February 2002.
  14. "Reynolds, R (on the application of) v Secretary of State for Work and Pensions". BAIL II. 7 March 2002.
  15. "Alconbury". BAIL II. 9 May 2001.
  16. "Michalak v London Borough of Wandsworth". BAIL II. 6 March 2002.
  17. "CASE OF JOHN MURRAY v. THE UNITED KINGDOM (Application no. 18731/91)". BAIL II. 8 February 1996.
  18. "CASE OF DARBY v. SWEDEN (Application no. 11581/85)". BAIL II. 23 October 1990.
  19. "Director of Public Prosecutions, Ex Parte Kebeline and Others, R". BAIL II. 30 October 1999.
  20. "Blackburn v The Attorney General". BAIL II. 10 May 1971.
  21. "R (Smeaton) v Secretary of State for Health". BAIL II. 10 May 2002.
  22. "Introduction to the Human Rights Act 1998". UK Human Rights Blog. 1 Crown Office Row barristers'.