NUMBER 19
SPRING
2003

BAPA Newsletter

Annette Carson & the House of Lords - BAPA & the Road Ahead
National Insurance Fund - The Carson Appeal Judgement (an analysis)
Tax deductibility - Lobbying - Some good quotes - BERIA
Your addresses - Financial report - Joining BAPA
Golden Wedding Day

BAPA will continue to fight for pension parity in every way possible, both political and legal, whether in the UK or in Europe.

ANNETTE CARSON & THE HOUSE OF LORDS

BAPA will continue to fight for pension parity in every way possible. As Parliament is currently in recess the Lords will not consider the petition before October. If the petition is granted the appeal is unlikely to be heard before March 2004 at the earliest.

In the event of a successful appeal to the Lords it will then be up to the Government, in due course, to amend legislation to remove the current "discriminatory" practice of non-indexation of Pensions in certain countries. Just how they choose to do that is wide open to speculation but any hope of their immediate granting of full indexation to all is unrealistic. They will find a way to wriggle out of that one.

The political fight for parity will still continue because, in the end, an equitable solution can only come through the political will of the Government in power.

If the Lords reject the petition and refuse to hear an appeal then it is possible that the next step will be applying to the European Court of Human Rights in Strasbourg. If that strategy proves viable then more money may be required, over and above the 150,000 already contributed by Canadian groups, aided by the Canadian Government.

Another possibility however is that the Lords, while rejecting her appeal against the judgement, might grant the appeal against costs. That would then probably free up enough money to take the case to Strasbourg.

It could be another year before we see any movement in the Carson case

BAPA & THE ROAD AHEAD

Now that Annette Carson's costs to date have been covered, according to her legal team, and that sufficient funds have been assured through the Canadian groups to cover her appeal to the House of Lords, BAPA will continue to fight for pension parity in every other way possible, both political and legal, whether in the UK or in Europe.

Our present activities include two ongoing cases lodged with the Department of Work & Pensions Appeal Tribunal on the grounds of Age Discrimination. Why should a man of 78 who retired in 1990 with a full contribution record receive just half of the pension of a man of 65 retiring this year with an identical contribution record. This was an aspect ignored in the Carson case & we are prepared to follow it through to the highest courts.

In addition we are investigating the possibility of reviving a case previously raised in the European Court of Human Rights and, in the opinion of senior Human Rights lawyers, almost certainly wrongfully dismissed.

We are consulting "Public Interest Lawyers" in the UK on these matters. This is the same legal organisation that brought discrimination cases on behalf of the Gurkhas with considerable success. They are also investigating for us the best way of getting legal aid to fund a case against the UK. Then they are looking into means of protecting both ourselves, and any of our members who might feature in any case we might bring, against the risk of appalling costs, such as those incurred by Carson when all British Government costs were awarded against her.

We will continue to keep you informed of progress on our web page and in future newsletters. Please continue to support us with your contributions. We greatly appreciate your generosity.

Official records reveal the National Insurance Fund will have a projected surplus of
20.1 billion
in the 2003/04 financial year

More than enough to help all impoverished British pensioners and unfreeze all frozen pensions

THE CARSON APPEAL JUDGEMENT

Analysis and comment
Property, by itself.

The reason that the crown will not concede that we have an entitlement to the upratings is that the law says that we do not. All other reasons advanced are attempts to defend the indefensible.

The law says that we do not get the uprating. The judge says that Carson never had the right to the upratings while living in South Africa. Therefore the increment in pension was not part of her possessions, and therefore she was not deprived of the right to quiet enjoyment of her possessions.

That's the kind of convoluted logic used by lawyers. But then do we really expect lawyers to be logical? After all, we do not expect mayors to be magical.

Discrimination

The court then went on to ask whether Annette Carson was a victim of discrimination. They asked four questions, which we now put in layman's language, just in case lawyers don't understand them.

Q1. Is the pension property? Answer - yes.

In plain terms, "yes, they paid for their benefits." But no acknowledgment that we paid the same as pensioners in the UK or USA.

Q2. Was the complainant (Annette Carson) treated differently from pensioners in the UK or indexed countries? Answer - yes. "no contest". Not a moment's hesitation, and no explanation given.

Q3. Can we compare Annette's pension with other people's pensions?

It was here that the learned judge got himself mixed up. Although he said "yes" to Q2 he could not find a fair comparison. He got tangled up in questions about cost of living, rates of inflation, and rates of exchange, and lost sight of the fact that frozen pensioners get less pounds than indexed pensioners get.

We have done some research that shows that indexed countries are just as much a mixture of rich and poor as the frozen countries are. If cost of living, rates of inflation, rates of exchange are irrelevant for indexed countries (they all get the same number of pounds) why do these factors matter for frozen countries? To apply different criteria to indexed countries and frozen countries is sheer discrimination, practised by the bench.

The answer "no" was rather surprising, given that he answered "yes" to question 2 so readily. He seemed to be saying that the complainant was being treated differently, but he could not for the life of him identify what the difference was and why she was getting less than a pensioner in the Philippines.

After saying "no" he went on to admit that he could be wrong, and therefore asked question 4.

Q4. Did the difference in treatment have an objective and reasonable justification?

Ultimately he answered "yes" - the government had a right to decide and it was not up to the court to make them repeal the freezing laws.

Living in Australia, we accept the notion that the High Court can strike down a law, even if it has been passed by all parties. This can happen, for example, if the court finds that a law breaches the Constitution. Unfortunately, Britain does not have a constitution, and the courts are afraid to accept that the Human Rights Act is a kind of constitution, with as much force as Magna Carta and the 1689 Bill of Rights

He seemed to be transfixed by an illusion that there was a limited fund of money, and that unfreezing our pensions would impoverish the NIF, and hence beggar the bulk of the UK pensioners.

This is hogwash. Not magical like Hogwarts, but just sheer nonsense. There are 24 times as many indexed pensioners as there are frozen ones. An extra few quid to us would cost less than paying winter fuel allowance to rich pensioners living in southern Spain and other winter resorts.

DWP (and the government *) is fond of suggesting that there is not enough money in the NIF to unfreeze pensions, and that the government's priority is to use the limited resources for the benefit of the poorest pensioners.

A great opportunity was missed in 2001. That year the basic pension went up by 5, which was more than double what the increase would have been, based on the 3.3% increase in other pensions, and of course a lot more than the 75p increase of the previous year. It cost the NIF 1.3 billion. If the government had raised the basic pension by 4 instead of 5 it could have saved enough money to unfreeze expatriate pensions. The 1 per week would have been made up to the poorest pensioners by the Minimum Income Guarantee.

Instead, the government chose to grant this large increase to rich and poor alike.

When it came to an election-winning move, the government easily found the cash - a lot more than they needed to do justice to Annette and us.

* It is sometimes difficult to detect whether it is the government minister or the DWP "minders" talking.

Perhaps it is because MPs who support us when in opposition are quickly trained by the bureaucrats when in office. Anyone who has followed "Yes Minister" will know what I mean.

James Nelson, Vice President.

TAX DEDUCTIBILITY

BAPA disclaims responsibility for the accuracy of this information.   It would be wise for you to seek independent advice from a tax agent or accountant or other professional person.

A member of BAPA secured a ruling that allows a deduction for contributions to the Fighting Fund in 2002/03.

We believe that the terms of the ruling are wide enough to cover the membership fee of $20 as well as any amounts given for the fighting fund. Only contributions on or after 1st July 2002 and before 1st July 2003 count. We do not know whether the deduction will be allowed for the new tax year 2003/2004.

The amount you are claiming should not be claimed under question D8 of the tax return. It should be entered in the supplementary section of the tax return at question D15 - Other deductions - not claimable at items D1 to D14 or elsewhere on your tax return.

This question has a write-in panel in which you have to describe the nature of the deduction. Be sure not to call it a "donation". We have had advice dating back to 1992 that a donation to BAPA is not deductible under D8 because BAPA doesn't qualify as a public benevolent institution. Call it "a contribution to BAPA", and attach an explanation on a separate sheet.

You are claiming under taxation ruling TR 2000/7, as amplified by private ruling 29897. If you have a taxation agent or accountant doing your tax return, draw attention to the general taxation ruling, which is on the ATO web site but difficult to find because of the labyrinth of menus.

And this is what to say on your explanatory note (attached to your tax return)

"The deduction I am claiming at question D15 is a contribution to the British Australian Pensioner Association Inc. The activities of the association are consistent with Taxation Ruling TR 2000/7 as amplified by private ruling 29897."

Also see a fuller explanation.

LOBBYING POLITICIANS & BUREAUCRATS

In theory the decision makers are politicians attached to Governments in power. However it is the Bureaucrats who control continuity between Governments. The freezing of pensions as a policy survives government after government. The opposition almost invariably supports our plea for parity while they remain in opposition but, once back in power the bureaucrats persuade them otherwise. The status quo is safer.

That is why our current letter-writing campaign is not only aimed at politicians, both in government and opposition, but also at the bureaucrats who always remain in background control.

BAPA Vice President James Nelson is coordinating our campaign. He has researched contact addresses for MPs of all parties and is working on a list of addresses for top bureaucrats as well. He has also formed a team of volunteer letter-writers, some of whom are using e-mail communication while others are sending letters by post.

Between them James, and our President Brian Havard have put together a series of papers covering effective letter writing and a set of position papers covering a variety of subjects. (More about the Letter-writing campaign)

If you wish to join the letter campaign please get in touch with him. If you would like the material by post a large stamped addressed envelope would be appreciated.

Some good quotes:

From Julian Brazier, MP. Conservative. "I agree that the treatment of UK pensioners in non-EU countries is very unfair and have spoken out on this issue a number of times. My colleagues in the Shadow Work & Pensions Team understand the concerns of people in receipt of a frozen pension."

Rhian Beynon, spokesperson for Age Concern on BBC Radio. "Given the injustice of the situation we would urge the government to keep looking at ways of resolving the issue,"

A motion passed unanimously by Wycombe District Council in the UK "This council is concerned to learn that the wishes of some of its residents to retire overseas is being affected by the freezing of their State Retirement Pension at the date of departure if they were to do so. This council therefore requests Her Majesty's Government to review this situation and remove inequalities."

BERIA

This internet discussion group, British Expatriate Retirees in Australia, has attracted a great deal attention since it was launched in our last newsletter.

It is designed to listen to the problems met by holders of 410 sub Visas and invite members to tell of solutions they find to those problems. To join BERIA go to:  http://groups.yahoo.com/group/BERIA/

Your addresses

If you have an e-mail address and would like us to communicate with you from time to time please send it to yeomanoz@yahoo.co.uk with "Add E-mail" in the subject line. Please also give your full name and address so that we can identify you in our records.

If you change your postal address please remember to tell us both your old and new addresses. It makes correcting your address on file easier.

FINANCIAL REPORT after audit - 2002/03

Thanks to the great generosity of so many of our members we received contributions totaling over $70,000 during the course of the last financial year. Of this we allocated $52,000 to support for the Annette Carson Appeal and spent $14,000 on legal advice

Operating expenses, including printing and circulating two newsletters (Nos 16 & 17), meeting expenses, bank charges and audit came to less than $4,000 - about 5% of income.

Jack Stoner, Treasurer

JOINING BAPA & CONTRIBUTING TO THE FIGHTING FUND

Though we do not currently charge an annual membership fee we do hope for a contribution each year in keeping with your ability.

When did you last contribute to BAPA ?

If you have not done so for a couple of years or so please do your best to make a contribution now. From our Financial Statement, above, you will see how your money is spent.   Whether you wish to join BAPA or, as an existing member make a contribution please use our Membership Form.

It is worth noting that only 5% of your money was spent on operating expenses such as Newsletter printing and distribution, bank charges, audit, postage etc.

GOLDEN WEDDING DAY

28th August 2003

Jack Stoner, our long term Secretary and Treasurer, wrote the following appreciation of Brian Havard.

As a BAPA member since 1985, I have been asked to pay a well deserved tribute to Brian's dedication, professionalism, and generosity to BAPA. He has been a committee member since 1992 and our President since 1995. He has excelled in coordinating our campaign, and in his undoubted ability in spearheading the complex legal issues which we have had to deal with over the past two years. He has been a major influence in the battle of the frozen pensions. Brian has been ably supported and assisted by his wife Rosemarie over all of those years. They celebrated their golden wedding anniversary on the 28th August 2003.

What a wonderful achievement

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