THE CARSON APPEAL
 A View of what happened in Court

Back to History of the Carson Case

An unidentified observer has produced for the South African Alliance of British Pensioners the following brief summary (here in italics) of the proceedings in the Appeals Court on 24 to 26 March 2003 before the Vice President of the Court Lord Justice Simon Brown, Lord Justice John Laws and Lord Justice Bernard Rix. Interspersed are BAPA comments.

General summary

It was clear that Lord Justice Laws was steeped in the case and his probing questioning demonstrated a keen desire to examine the facts and pronounce judgment promptly. Indeed Lord Justice Simon Brown indicated that the Court had in mind to provide a solution and that they were inclined against a judgment which left open further litigation. It was understood that the Bench accepted that the Complaint was one of unjustified discrimination and the remedy requested was the striking down of the errant legislation. However it was indicated the Court was inclined to recommend a solution or a 'path to a solution' which was deemed helpful, provided of course that their Lordships accept that there is unlawful discrimination.

The Court indicated concern about some aspects of the lower Court Judgment and Lord Justice Laws commented ' Mr Justice Burnton's comments are often not the crisp ones I usually see from him'.

The Court indicated its support for a wide applicability of Article 1 Protocol 1 of the HR Act which crucially gives an individual a right in possession as a result of making contributions to the State Pension Scheme. This was a radical departure from Justice Stanley Burnton who had refused to accept such a contention. This is a crucially important point as without having a 'property right' you cannot successfully claim discrimination.

The next day Department for Work and Pensions, DWP, Counsel conceded that there was a right in possession and this was noted by the Bench. However the DWP Counsel on the third day tried to withdraw or deny the concession but was roundly dismissed by Lord Justice Laws who was not prepared to accept such a tactic. The right was maintained though DWP Counsel indicated in summing up that if he lost the point he would Appeal on this issue alone!

BAPA comments:
The attitude of the court was encouraging (but so it was in the early High Court stages), especially that: "The Court indicated its support for a wide applicability of Article 1 Protocol 1 of the Human Rights Act which crucially gives an individual a right in possession as a result of making contributions to the State Pension Scheme." Note that, after the DWP Counsel conceded the point (as had been done in the High Court), his later attempted withdrawal was denied by the Bench.

Mystifying and slightly worrying was: "Lord Justice Simon Brown indicated that the Court had in mind to provide a solution and that they were inclined against a judgment which left open further litigation." This hints at compromise; our goal remains nothing short of parity.

Specific points from each side

Richard Drabble QC for Annette Carson

1 Uprating (Indexation) is paid to some pensioners in foreign countries but not in  other foreign countries this is unjustifiably discriminatory and unlawful under the Human Rights Act (Article 14).

2. There is only one class of pensioners when contributions are being paid and in the year of qualifying for pension all receive the same whether resident in the UK or any foreign country.

3. Artificially splitting basic pension, at retirement age at 60 or 65, from indexation is discriminatory and unlawful. Both basic pension and indexation stem from one contribution record: regulations splitting indexation are discriminatory and unlawful.

4. Discrimination on the grounds of residence is unlawful where there is no objection  (‘objective’ is meant) nor reasonable justification . No justification other than cost, which is not a ground for justification, is given and the Minister admits none exists.

5. The indexation removal regulations are unlawful to the extent that it constitutes an unjustified deprivation of her {Annette Carson's} property, or interference with her possessions contrary to Article 1 Protocol 1 of the European Court of Human Rights.

6. Bi-lateral Agreements between the UK and some foreign governments granting pension indexation are only agreements at National level. These cannot unlawfully deprive a pensioner of indexation to which the pensioner has a personal right. Bi-lateral Agreements are strictly not relevant.

BAPA comments:
At last the comparison is being emphasized as between pensioners in foreign countries. Relevant and illustrative is this comment just received from a member: "My wife and I have lived in the British Virgin Islands for nearly 20 years, and yes our British pensions are frozen. If we happened to live in say the very nearby United States Virgin Islands we would of course receive indexation."

Drabble’s points 2 and 3 (if quoted accurately) are very well made.

Counsel seems to have drawn point 6 from the BAPA briefing document" The Case against Pensions Discrimination"; it was one of six telling criticisms made by the German Constitutional Court which abolished an almost identical policy of pensions discrimination

John Howell QC ("JH") for the Department of Work & Pensions

1. There is an admitted limited right to property by reason of contributions and thus Article 1 Protocol 1 is in play. (Point 5 of Richard Drabble’s case conceded: a major point which Mr. Howell later tried to deny but the bench would have none of it: point granted in favour of Carson).

2. To grant Ms Carson's claim would wreck the UK Social Security System.  Pensions are an integral part of benefits and the Government cannot pay any more. Surely the Bench would not want to jeopardize the well being of millions of UK resident pensioners.

3. Inability to pay is justification.

4. Foreign Policy is justification. The UK's position to enter into Bi Lateral Agreements and thus Foreign Policy would be impossibly hampered if the Bi Laterals were ignored. (Mr. Howell inferred Ms. Carson was a foreign national!)

5. Indexation is not at all connected to Basic Frozen Pension Payments which nobody has denied.

6. The UK's domestic procedures are its prerogative to exercise as a Nation State. Pension is an integral part. It is lawfully entitled to discriminate dependant upon residence (NB almost a denial of the existence of the Human Rights Act 1998).

BAPA comments:
while it is imperative not to indulge in wishful thinking, the points made by Counsel for the defence (again if correctly reported) appear strangely hysterical, especially in point 2 above. The budget for Social Security is well in excess of £100 billion, of which pensions alone exceed £40 billion. The additional cost of paying our entitlement approaches £400 million. Countless billions could be found instantly to fight the war in Iraq. It has even been proposed to help out failing private pension schemes to the tune of £15 billion by using ‘orphan assets’ which arise when banks with accounts that have been dormant for years no longer have an address for the holders, or when life companies have matured policies which have never been claimed. ‘Wreck Social Security’ – what nonsense!

 

COSTS APPEAL

Mr Drabble requested the Costs Appeal proceed at closure of the main hearing but this was Emphatically rejected by Lord Justice Simon Brown. It was suggested it would not be to the claimant's advantage to hear the matter then and agreed that it be deferred to the Judgment Hearing when it was mooted it might not be significant.

BAPA comments:
This seems to be a strong indication that Burnton will be overturned, at least in part.

We do not speculate on the outcome and the Court may on reflection come to a conclusion not apparent from the debate and 'lndications' in Open Court.

BAPA comments:
Translated this means that the law is on our side but beware the intervention of  politics!