Back to History of the Carson Case

The House of Lords appeal in the case of the ‘frozen’ expatriate pensioners has failed. In late May, by a four-to-one margin, the Law Lords rejected Annette Carson’s appeal against expat pensions discrimination.

Put simply, those expatriate pensioners who receive no annual upgrade in their state pensions because of where they live – and unlike identical pensioners living in other countries – will continue to be discriminated against, and the Law Lords have said it is legal for the government to continue doing it.

It is important to understand this point: at each stage in the long legal process and including the Law Lords’ judgement, the judges have agreed that the government is engaged in discrimination, but have concluded that it is not breaking the law in doing so. Those pensioners – 550,000 of them according to experts – who struggle to get by on weekly pensions that are sometimes dramatically lower than the UK standard, will have to keep their belts tightened for the foreseeable future.

This is astonishing. And depressing. A form of wrong has been admitted, but the law is powerless to prevent it. The case rested heavily on anti-discrimination legislation, but the Law Lords have concluded that the legislation only applies to race, sex and gender, and not to things like geographical location, which is the basis of the current discrimination. The government will continue to get away with not paying out a full pension, despite the fact that the UK pensions system is meant to be based on an individual’s national insurance contributions and nothing else.

Why does the government do this? Because it can. And because it wants to avoid laying out the annual £400 million it would take to treat all expat pensioners equally. It has been pointed out ad nauseum that the pensions pot is in healthy surplus, so it could afford the extra expense. And in any case, a national insurance system ought simply to pay what is owed without demur. It has also been pointed out that in the general scheme of government waste and financial profligacy, £400 million is pretty small beer. But there we are. The Lords have ruled that the government is not acting illegally, although nobody – apart perhaps from mendacious government ministers – claims they are acting morally.

The tale has been a long and sorry one. Even without the often distressing stories of 80-year-old widows living on pensions fixed at 1964 rates (meaning a few pounds a week) the basic inequity of the situation has been glaring. One could, just about, make a case that no expatriate pensioners at all should get a full UK upgrade (although how one would make that case with any shred of intellectual honesty escapes me). But to discriminate merely because of where people live is utterly indefensible.

Let’s get one thing straight though: it is not quite accurate to say that the government is ‘getting away’ with withholding money from certain pensioners; on the contrary, the only reason why it pays the full amount to any expat pensioner is because in it is legally forced to in those countries alone. If it could, the government would almost certainly refuse to pay upgrades to the whole lot.

The genius of English common law is that the courts are there to make explicit what the community believes to be just. ‘Justice’ in this sense does not exist prior to its exposition in court. In the case of frozen expat pensioners, English law has failed. What is manifestly just has been overruled by mere legality.