Also see Carson- the Hooper precedent

You can also see the full unabridged Judgment

R (ON THE APPLICATION OF CARSON) v SECRETARY OF STATE FOR WORK AND PENSIONS & ANR
(Filed: 30/05/2002)

Queen's Bench Division (Administrative Court)
Stanley Burnton J
May 22, 2002

FACTS

C had been resident in South Africa since 1990. For most of her working life she had been in England and had paid National Insurance contributions. When in South Africa she had paid voluntary contributions to protect her right to a UK state pension. She began to draw her UK pension in September 2000. While the claimant remained in South Africa her British pension would remain frozen at £103.62 per week irrespective of inflation-based uprating of pensions for those who lived in Great Britain and certain other countries with which reciprocal arrangements were in force. C had not received the increase in the basic pension which had been paid since 9 April 2001. Recipients of British pensions in Australia, Canada and New Zealand were in the position of having their pensions frozen at the amount payable at the age of 65 if they had already emigrated or when they emigrated if they did so subsequently. C complained that her rights under Art 1 of the First Protocol to the European Convention on Human Rights and under Art 14 had been infringed.

ISSUES

(1)Whether the claimant who was not within the jurisdiction could rely on the European Convention on Human Rights.

(2)Whether there was an infringement of Art 1 of the First Protocol.

(3)Whether there was an infringement of Art 14.

HELD (dismissing the claim for judicial review)

(1)Article 1 of the ECHR limited Convention rights to persons within the jurisdiction of the contracting states. That did not mean only territorial jurisdiction (Drozd v France (1992) 14 EHRR 745). In the present case, the object of the application was UK legislation which conferred benefits on individuals and that was clearly within the jurisdiction of the UK as a contracting state in the sense of Art 1. On that basis a person such as the claimant whose rights or property were within the jurisdiction was entitled to such of the Convention rights as applied to those rights or property.

(2)A UK pension was not the fruit of contributions by a pensioner and there was therefore no right of property to be protected under Art 1 of the First Protocol. There was a clear and consistent line of decisions of the Commission to the effect that Art 1 of the First Protocol did not guarantee a right to a pension of any particular amount, and that the failure to pay uprating to a person abroad did not infringe Art 1 of the First Protocol and Art 14 because the freezing of a pension at a particular level when a person left the UK was not a deprivation of possessions and the different treatment of pensioners abroad was justified since the uprating was intended to compensate for rises in the cost of living in the UK and the economic state of other countries was not a matter which domestic pension authorities should be obliged to consider. That line of authority had to be reconsidered in light of Gaygusuz v Austria (1996) 23 EHRR 230. If Gaygusuz held that a non-contributory social security benefit was a pecuniary right for the purposes of Art 1 of the First Protocol, it remained the case that a pecuniary right protected by Art 1 was defined by the domestic legislation which created it. The UK legislation never conferred a right on the claimant to the uprating of her pension while she lived in South Africa. Since she did not satisfy the conditions for payment of an uprated pension, she never had a right to such a pension and could not be deprived of it in breach of Art 1 of the First Protocol.

(3)Applying the structured approach to Art 14 set out in Michalak v London Borough of Wandsworth [2002] EWCA Civ 271; the court concluded that the claim fell within the ambit of Art 1 of the First Protocol (Gaygusuz), that there was different treatment between the claimant and her chosen comparators and that the basis for different treatment, namely residence in the UK, was a ground within Art 14 (Darby v Sweden (1991) 13 EHRR 774). However the chosen comparators, in the UK and countries with reciprocal arrangements, were not in an analogous position to that of the claimant and her claim failed for that reason. Furthermore the decision of the government to restrict pension uprating to those living in the UK and other countries with reciprocal arrangements could be objectively justified and was lawful. The government was entitled to consider the payment of uprated pensions to those living abroad on a country-by-country basis. The difference in treatment arose for historical and political reasons and the decision to pay uprated pensions could only be taken by Parliament.

Richard Drabble QC, Helen Mountfield and Murray Hunt (instructed by Thomas Eggar Church Adams) for the claimant. James Eadie and Khawar Qureshi (instructed by the Treasury Solicitor) for the defendant. Tom de la Mare for the intervening party.

Case reported by Stephen Barbour, barrister