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Neutral Citation Number: [2019] EWHC 2552 (Admin) Case No: CO/3174/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT



Royal Courts of Justice

Strand, London, WC2A 2LL 03/10/2019

B e f o r e : LORD JUSTICE IRWIN

MRS JUSTICE WHIPPLE

____________________ Between:

THE QUEEN on the application of

(1) JULIE DELVE

(2) KAREN GLYNN





Claimants

- and -



THE SECRETARY OF STATE FOR WORK AND PENSIONS



Defendant

____________________ Michael Mansfield QC, Catherine Rayner, Adam Straw and Keina Yoshida (instructed by Birnberg Peirce Solicitors) for the Claimants

Sir James Eadie QC, Julian Milford and Edward Capewell (instructed by The Government Legal Department) for the Defendant



Hearing dates: 5th and 6th June 2019

____________________ HTML VERSION OF JUDGMENT APPROVED

____________________ Crown Copyright ©

It should be based on maintaining a given proportion of adult life in receipt of State Pension,

It should take into account the latest demographic data available and be informed by wider factors that could be taken into account when setting State Pension age; and

It should seek to provide a minimum of 10 years' notice for individuals affected by changes to State Pension age."

The Claimants argue, relying on the decision of the Supreme Court in Re Finucane [2019] UKSC 7, that "it is for the court to decide what fairness requires". In general terms, and without relying on particular passages from Finucane or other authority, the Claimants submit that the suggested failure to give adequate notice was unlawful because the Claimants (and many others in their position) had a legitimate expectation that the Defendant would provide sufficient notice: crystallised in the submission that there was a requirement for direct personal notice at least ten years ahead of an altered SPA.

" have only become a realistic proposition with the last 15-20 years with the development of national databases based on National Insurance and benefit records and IT capable of manipulating such data on the scale required. It is for this reason that government has typically preferred broadcast mediums such as television and the distribution of leaflets to direct mailing over the years."

" founded in concerns over the accuracy of the address data held by government at the time about its citizens."

People often fail to tell government about a change of address, and so it was thought risky to send unsolicited forecasts "exposing citizens' personal data".

"this could be due to media discussion and publicity around the anticipated rise in SPA which could have caused confusion as to when these changes will take place and the particular time period which the questions were asking about."

Defendant's Submissions on the Law Relating to Notification

"No one has a vested right to continuance of the law as it stood in the past."

"very powerful reasons of principle against the existence of any such obligation. The process of enacting primary legislation and the fact of it when enacted are public. Parliamentary debate and the legislative process itself provides such notification. The asserted obligation would be entirely impractical . If this part of the Claimants' case were right, it would logically follow that every Act substantially affecting members of the public would require some further act of personal notification by a Minister."

Our Conclusions on Notification

"43. The real obstacle which I think stands in the appellants' way is the difficulty of propounding a principle which reconciles fairness to an adversely affected class with the principles of public administration that are also part of the common law. These are not based on administrative convenience or potential embarrassment. They arise from the separation of powers and the entitlement of executive government to formulate and reformulate policy, albeit subject to such constraints as the law places upon the process and the product. One set of such constraints in modern public law are the doctrines of legitimate expectation, both procedural and substantive. Some have been touched on above  for example the requirements of candour and open-mindedness where either law or established practice calls for consultation. The duty to give reasons is another area in which there has been marked growth. It is not unthinkable that the common law could recognise a general duty of consultation in relation to proposed measures which are going to adversely affect an identifiable interest group or sector of society.

44. But what are its implications? The appellants have not been able to propose any limit to the generality of the duty. Their case must hold good for all such measures, of which the state at national and local level introduces certainly hundreds, possibly thousands, every year. If made good, such a duty would bring a host of litigable issues in its train: is the measure one which is actually going to injure particular interests sufficiently for fairness to require consultation? If so, who is entitled to be consulted? Are there interests which ought not to be consulted? How is the exercise to be publicised and conducted? Are the questions fairly framed? Have the responses been conscientiously taken into account? The consequent industry of legal challenges would generate in its turn defensive forms of public administration. All of this, I accept, will have to be lived with if the obligation exists; but it is at least a reason for being cautious.

45. The proposed duty is, as I have said, not unthinkable  indeed many people might consider it very desirable - but thinking about it makes it rapidly plain that if it is to be introduced it should be by Parliament and not by the courts. Parliament has the option, which the courts do not have, of extending and configuring an obligation to consult function by function. It can also abandon or modify obligations to consult which experience shows to be unnecessary or unworkable and extend those which seem to work well. The courts, which act on larger principles, can do none of these things.

47. For all these reasons I am not prepared to hold that there was at common law an obligation to consult those affected or their representatives before introducing the material changes to the Immigration Rules. I do not seek to elevate this to a general rule that fairness can never require consultation as a condition of the exercise of a statutory function; but in the present context it seems to me that a duty to consult would require a specificity which the courts, concerned as they are with developing principles, cannot furnish without assuming the role of a legislator. We would have, for example, to determine whether the duty contended for under s.3 of the 1971 Act arises before or after the formation of the policy prompting the rule-change; whether consultation is to be obligatory or discretionary; whether it is to take the form of a limited approach or a public exercise; whether the identity of the consultees should be prescribed or left to the Secretary of State; if the former, who they should be; if the latter, according to what criteria, if any, they should be chosen; and so forth. It is only if BAPIO could show that it would be entitled to be consulted whatever scheme was chosen that it might be able to overcome these obstacles. But, while I readily recognise the strength of its claim to be heard as the main representative of the cohort most directly and adversely affected, I do not think it can make out such a case. It is not inconceivable, for example, that a prescribed scheme, however controversially, would name the BMA as a sole consultee, relying on the s.71 exercise to reveal any unjustifiable disparate racial or national impact. We simply cannot know."

"62. From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of fairness is whether the alteration in policy frustrates any reliance which the person or group has placed on it. This is quite different, in my opinion, from saying that it is a prerequisite of a substantive legitimate expectation claim that the person relying on it must show that he or she has suffered a detriment.

63. In this case, it was argued for the respondent that it was incumbent on Mrs Finucane to show that she had suffered a detriment. That argument simply does not avail in this instance, since the question of detriment can only arise, if it arises at all, in the context of a substantive legitimate expectation. Here the promise made did not partake of a substantive benefit to a limited class of individuals (as, for instance, in Ex p Coughlan); it was a policy statement about procedure, made not just to Mrs Finucane but to the world at large.

64. The onus of establishing that a sufficiently clear and unambiguous promise or undertaking, sufficient to give rise to a legitimate expectation, is cast on the party claiming it - see, for instance, In re Loreto Grammar School's Application for Judicial Review [2012] NICA 1; [2013] NI 41, para 42 et seq. In Paponette v Attorney General of Trinidad and Tobago [2012] 1 AC 1, para 37, Lord Dyson said:

"The initial burden lies on an applicant to prove the legitimacy of his expectation. This means that in a claim based on a promise, the applicant must prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wishes to reinforce his case by saying that he relied on the promise to his detriment, then obviously he must prove that too.""

Delay

Conclusion

ANNEX 1

Pensions Act 1995 (As Enacted)

SCHEDULE 4

Equalisation

Part I

Pensionable ages for men and women

Rules for determining pensionable age

1. The following rules apply for the purposes of the enactments relating to social security, that is, the following Acts and the instruments made, or having effect as if made, under them: the Social Security Contributions and Benefits Act 1992, the Social Security Administration Act 1992 and the Pension Schemes Act 1993.

Rules

(1) A man attains pensionable age when he attains the age of 65 years.

(2) A woman born before 6th April 1950 attains pensionable age when she attains the age of 60.

(3) A woman born on any day in a period mentioned in column 1 of the following table attains pensionable age at the commencement of the day shown against that period in column 2.

(4) A woman born after 5th April 1955 attains pensionable age when she attains the age of 65.

Table

(1)

Period within which woman's birthday falls (2)

Day pensionable age attained 6th April 1950 to 5th May 1950 6th May 2010 6th May 1950 to 5th June 1950 6th July 2010 6th June 1950 to 5th July 1950 6th September 2010 6th July 1950 to 5th August 1950 6th November 2010 6th August 1950 to 5th September 1950 6th January 2011 6th September 1950 to 5th October 1950 6th March 2011 6th October 1950 to 5th November 1950 6th May 2011 6th November 1950 to 5th December 1950 6th July 2011 6th December 1950 to 5th January 1951 6th September 2011 6th January 1951 to 5th February 1951 6th November 2011 6th February 1951 to 5th March 1951 6th January 2012 6th March 1951 to 5th April 1951 6th March 2012 6th April 1951 to 5th May 1951 6th May 2012 6th May 1951 to 5th June 1951 6th July 2012 6th June 1951 to 5th July 1951 6th September 2012 6th July 1951 to 5th August 1951 6th November 2012 6th August 1951 to 5th September 1951 6th January 2013 6th September 1951 to 5th October 1951 6th March 2013 6th October 1951 to 5th November 1951 6th May 2013 6th November 1951 to 5th December 1951 6th July 2013 6th December 1951 to 5th January 1952 6th September 2013 6th January 1952 to 5th February 1952 6th November 2013 6th February 1952 to 5th March 1952 6th January 2014 6th March 1952 to 5th April 1952 6th March 2014 6th April 1952 to 5th May 1952 6th May 2014 6th May 1952 to 5th June 1952 6th July 2014 6th June 1952 to 5th July 1952 6th September 2014 6th July 1952 to 5th August 1952 6th November 2014 6th August 1952 to 5th September 1952 6th January 2015 6th September 1952 to 5th October 1952 6th March 2015 6th October 1952 to 5th November 1952 6th May 2015 6th November 1952 to 5th December 1952 6th July 2015 6th December 1952 to 5th January 1953 6th September 2015 6th January 1953 to 5th February 1953 6th November 2015 6th February 1953 to 5th March 1953 6th January 2016 6th March 1953 to 5th April 1953 6th March 2016 6th April 1953 to 5th May 1953 6th May 2016 6th May 1953 to 5th June 1953 6th July 2016 6th June 1953 to 5th July 1953 6th September 2016 6th July 1953 to 5th August 1953 6th November 2016 6th August 1953 to 5th September 1953 6th January 2017 6th September 1953 to 5th October 1953 6th March 2017 6th October 1953 to 5th November 1953 6th May 2017 6th November 1953 to 5th December 1953 6th July 2017 6th December 1953 to 5th January 1954 6th September 2017 6th January 1954 to 5th February 1954 6th November 2017 6th February 1954 to 5th March 1954 6th January 2018 6th March 1954 to 5th April 1954 6th March 2018 6th April 1954 to 5th May 1954 6th May 2018 6th May 1954 to 5th June 1954 6th July 2018 6th June 1954 to 5th July 1954 6th September 2018 6th July 1954 to 5th August 1954 6th November 2018 6th August 1954 to 5th September 1954 6th January 2019 6th September 1954 to 5th October 1954 6th March 2019 6th October 1954 to 5th November 1954 6th May 2019 6th November 1954 to 5th December 1954 6th July 2019 6th December 1954 to 5th January 1955 6th September 2019 6th January 1955 to 5th February 1955 6th November 2019 6th February 1955 to 5th March 1955 6th January 2020 6th March 1955 to 5th April 1955 6th March 2020

ANNEX 2

[The Amended Schedule to the 1995 Act]

Table 1

(1)

Period within which woman's birthday falls (2)

Day pensionable age attained 6 April 1950  5 May 1950 6 May 2010 6 May 1950  5 June 1950 6 July 2010 6 June 1950  5 July 1950 6 September 2010 6 July 1950  5 August 1950 6 November 2010 6 August 1950  5 September 1950 6 January 2011 6 September 1950  5 October 1950 6 March 2011 6 October 1950  5 November 1950 6 May 2011 6 November 1950  5 December 1950 6 July 2011 6 December 1950  5 January 1951 6 September 2011 6 January 1951  5 February 1951 6 November 2011 6 February 1951  5 March 1951 6 January 2012 6 March 1951  5 April 1951 6 March 2012 6 April 1951  5 May 1951 6 May 2012 6 May 1951  5 June 1951 6 July 2012 6 June 1951  5 July 1951 6 September 2012 6 July 1951  5 August 1951 6 November 2012 6 August 1951  5 September 1951 6 January 2013 6 September 1951  5 October 1951 6 March 2013 6 October 1951  5 November 1951 6 May 2013 6 November 1951  5 December 1951 6 July 2013 6 December 1951  5 January 1952 6 September 2013 6 January 1952  5 February 1952 6 November 2013 6 February 1952  5 March 1952 6 January 2014 6 March 1952  5 April 1952 6 March 2014 6 April 1952  5 May 1952 6 May 2014 6 May 1952  5 June 1952 6 July 2014 6 June 1952  5 July 1952 6 September 2014 6 July 1952  5 August 1952 6 November 2014 6 August 1952  5 September 1952 6 January 2015 6 September 1952  5 October 1952 6 March 2015 6 October 1952  5 November 1952 6 May 2015 6 November 1952  5 December 1952 6 July 2015 6 December 1952  5 January 1953 6 September 2015 6 January 1953  5 February 1953 6 November 2015 6 February 1953  5 March 1953 6 January 2016 6 March 1953  5 April 1953 6 March 2016 6 April 1953  5 May 1953 6 July 2016 6 May 1953  5 June 1953 6 November 2016 6 June 1953  5 July 1953 6 March 2017 6 July 1953  5 August 1953 6 July 2017 6 August 1953  5 September 1953 6 November 2017 6 September 1953  5 October 1953 6 March 2018 6 October 1953  5 November 1953 6 July 2018 6 November 1953  5 December 1953 6 November 2018

(5) A person born on any day in a period mentioned in column 1 of table 2 attains

pensionable age at the commencement of the day shown against that period in column 2.

Table 2

(1)

Period within which birthday falls (2)

Day pensionable age attained 6 December 1953  5 January 1954 6 March 2019 6 January 1954  5 February 1954 6 May 2019 6 February 1954  5 March 1954 6 July 2019 6 March 1954  5 April 1954 6 September 2019 6 April 1954  5 May 1954 6 November 2019 6 May 1954  5 June 1954 6 January 2020 6 June 1954  5 July 1954 6 March 2020 6 July 1954  5 August 1954 6 May 2020 6 August 1954  5 September 1954 6 July 2020 6 September 1954  5 October 1954 6 September 2020

(6) A person born after 5 October 1954 but before 6 April 1960 attains pensionable age when the person attains the age of 66.

(7) A person born on any day in a period mentioned in column 1 of table 3 attains pensionable age when the person attains the age shown against that period in column 2.

Table 3

(1)

Period within which birthday falls (2)

Age pensionable age attained 6 April 1960  5 May 1960 66 years and 1 month 6 May 1960  5 June 1960 66 years and 2 months 6 June 1960  5 July 1960 66 years and 3 months 6 July 1960  5 August 1960 66 years and 4 months 6 August 1960  5 September 1960 66 years and 5 months 6 September 1960  5 October 1960 66 years and 6 months 6 October 1960  5 November 1960 66 years and 7 months 6 November 1960  5 December 1960 66 years and 8 months 6 December 1960  5 January 1961 66 years and 9 months 6 January 1961  5 February 1961 66 years and 10 months 6 February 1961  5 March 1961 66 years and 11 months

(7A) For the purposes of table 3 

(a) a person born on 31 July 1960 is to be taken to attain the age of 66 years and 4 months at the commencement of 30 November 2026;

(b) a person born on 31 December 1960 is to be taken to attain the age of 66 years and 9 months at the commencement of 30 September 2027;

(c) a person born on 31 January 1961 is to be taken to attain the age of 66 years and 10 months at the commencement of 30 November 2027.

(8) A person born after 5 March 1961 but before 6 April 1977 attains pensionable age when the person attains the age of 67.

(9) A person born on any day in a period mentioned in column 1 of table 4 attains pensionable age at the commencement of the day shown against that period in column 2.

Table 4

(1)

Period within which birthday falls (2)

Day pensionable age attained 6 April 1977  5 May 1977 6 May 2044 6 May 1977  5 June 1977 6 July 2044 6 June 1977  5 July 1977 6 September 2044 6 July 1977  5 August 1977 6 November 2044 6 August 1977  5 September 1977 6 January 2045 6 September 1977  5 October 1977 6 March 2045 6 October 1977  5 November 1977 6 May 2045 6 November 1977  5 December 1977 6 July 2045 6 December 1977  5 January 1978 6 September 2045 6 January 1978  5 February 1978 6 November 2045 6 February 1978  5 March 1978 6 January 2046 6 March 1978  5 April 1978 6 March 2046

(10) A person born after 5 April 1978 attains pensionable age when the person attains the age of 68.

ANNEX 3

Pensions Act 2007

13 Increase in pensionable age for men and women

(1) Schedule 3 amends section 126 of, and Part 1 of Schedule 4 to, the Pensions Act 1995 (c.26) for the purpose of increasing the pensionable age for men and women [ ].

(2) Part 8 of Schedule 1 contains consequential amendments.

(3) The amendments made by that Part of that Schedule have effect as from [6th December 2018].

SCHEDULE 3

INCREASE IN PENSIONABLE AGE FOR MEN AND WOMEN

In the sidenote to section 126 of the Pensions Act 1995 (c.26), at the end insert "and increase in pensionable age".

2

In section 126 of that Act (equalisation of pensionable age) in paragraph (a), at the end insert "and to increase the pensionable age for men and women progressively over a period of 22 years beginning with 6th April 2024".

4

(1) Paragraph 1 of Part 1 of Schedule 4 to that Act (pensionable ages for men and women) is amended as follows.

(2) In sub-paragraph (1), after "man" insert "born before 6th April 1959".

(3) In sub-paragraph (3), for "the following table" substitute "Table 1".

(4) [ ]

(5) For the heading for the table substitute "TABLE 1".

(6) After the table insert 

"(5) a person born on any day in a period mentioned in column 1 of table 2 attains pensionable age at the commencement of the day shown against that period in column 2.

Table 2

(1) (2) Period within which birthday falls Day pensionable age attained 6th April 1959 to 5th May 1959 6th May 2024 6th May 1959 to 5th June 1959 6th July 2024 6th June 1959 to 5th July 1959 6th September 2024 6th July 1959 to 5th August 1959 6th November 2024 6th August 1959 to 5th September 1959 6th January 2025 6th September 1959 to 5th October 1959 6th March 2025 6th October 1959 to 5th November 1959 6th May 2025 6th November 1959 to 5th December 1959 6th July 2025 6th December 1959 to 5th January 1960 6th September 2025 6th January 1960 to 5th February 1960 6th November 2025 6th February 1960 to 5th March 1960 6th January 2026 6th March 1960 to 5th April 1960 6th March 2026

(6) A person born after 5th April 1960 but before 6th April 1968 attains pensionable age when the person attains the age of 66.

(7) A person born on any day in a period mentioned in column 1 of table 3 attains pensionable age at the commencement of the day shown against that period in column 2.

Table 3

(1) (2) Period within which birthday falls Day pensionable age attained 6th April 1968 to 5th May 1968 6th May 2034 6th May 1968 to 5th June 1968 6th July 2034 6th June 1968 to 5th July 1968 6th September 2034 6th July 1968 to 5th August 1968 6th November 2034 6th August 1968 to 5th September 1968 6th January 2035 6th September 1968 to 5th October 1968 6th March 2035 6th October 1968 to 5th November 1968 6th May 2035 6th November 1968 to 5th December 1968 6th July 2035 6th December 1968 to 5th January 1969 6th September 2035 6th January 1969 to 5th February 1969 6th November 2035 6th February 1969 to 5th March 1969 6th January 2036 6th March 1969 to 5th April 1969 6th March 2036

(8) A person born after 5th April 1969 but before 6th April 1977 attains pensionable age when the person attains the age of 67.

(9) A person born on any day in a period mentioned in column 1 of table 4 attains pensionable age at the commencement of the day shown against that period in column 2.

Table 4

(1) (2) Period within which birthday falls Day pensionable age attained 6th April 1977 to 5th May 1977 6th May 2044 6th May 1977 to 5th June 1977 6th July 2044 6th June 1977 to 5th July 1977 6th September 2044 6th July 1977 to 5th August 1977 6th November 2044 6th August 1977 to 5th September 1977 6th January 2045 6th September 1977 to 5th October 1977 6th March 2045 6th October 1977 to 5th November 1977 6th May 2045 6th November 1977 to 5th December 1977 6th July 2045 6th December 1977 to 5th January 1978 6th September 2045 6th January 1978 to 5th February 1978 6th November 2045 6th February 1978 to 5th March 1978 6th January 2046 6th March 1978 to 5th April 1978 6th March 2046

(10) A person born after 5th April 1978 attains pensionable age when the person attains the age of 68."

ANNEX 4

Pensions Act 2011

Part I

state Pension

1. Equalisation of and increase in pensionable age for men and women

(1) In Schedule 4 to the Pensions Act 1995 (equalisation of and increase in pensionable age for men and women) paragraph 1 is amended as follows.

(2) In sub-paragraph (1) for "6th April 1959" substitute "6th December 1953".

(3) Omit sub-paragraph (4).

(4) In table 1 for the entries (in both columns) relating to each of the periods from "6th April 1953 to 5th May 1953" to "6th March 1955 to 5th April 1955" substitute

"6th April 1953 to 5th May 1953 6th July 2016 6th May 1953 to 5th June 1953 6th November 2016 6th June 1953 to 5th July 1953 6th March 2017 6th July 1953 to 5th August 1953 6th July 2017 6th August 1953 to 5th September 1953 6th November 2017 6th September 1953 to 5th October 1953 6th March 2018 6th October 1953 to 5th November 1953 6th July 2018 6th November 1953 to 5th December 1953 6th November 2018"

(5) For table 2 substitute 

Table 2

(1)

Period within which birthday falls (2)

Day pensionable age attained 6th December 1953 to 5th January 1954 6th March 2019 6th January 1954 to 5th February 1954 6th May 2019 6th February 1954 to 5th March 1954 6th July 2019 6th March 1954 to 5th April 1954 6th September 2019 6th April 1954 to 5th May 1954 6th November 2019 6th May 1954 to 5th June 1954 6th January 2020 6th June 1954 to 5th July 1954 6th March 2020 6th July 1954 to 5th August 1954 6th May 2020 6th August 1954 to 5th September 1954 6th July 2020 6th September 1954 to 5th October 1954 6th September 2020

6) In sub-paragraph (6) for "5th April 1960" substitute "5th October 1954".

(7) Schedule 1 (equalisation of and increase in pensionable age for men and women: consequential amendments) has effect.