French changes to pensions, increasing age of accrual from 62 to 64 and creating a single, universal system earning pension points with each day worked, are argued to favour women – yet this is not so clear. What is clear is that French workers – women and men – have taken to the streets protesting against the changes. The contrast with the French response and the response when the Pensions Act 1995 passed through Westminster is stark: no demonstrations back in 1995, because (unlike the situation in France) those impacted had no notice.

When Westminster changed the law existing since the 1940s, bringing women’s pension age up from 60 to 65 (the age men gained the pension), women were not told. Had they been, demonstrations by women (and male supporters) now taking place would have happened 28 years ago.

The Pensions Act 1995 targeted 1950s-born women in making the change. The then Secretary of Work and Pensions, Peter Lilley, in his Second Reading Speech specifically excluded 1940s women from the change, and targeted 1950s women. The 4th Schedule to the Act set out a time-based plan based on women’s birthdates through that decade. The Schedule showed some women receiving the pension on their birthdate, though later than 60, whilst for others the pension was to be paid later than 60, and not on their birthday.

When at last notifications began to trickle through, the Department of Work and Pensions (DWP) realising – although minimally – its obligation to let those impacted know, 1950s women organised. BackTo60 (claiming full restitution, not a return to the 60-years pension) launched a judicial review action that ran through the High Court to the Court of Appeal, ending in the Supreme Court. The High Court and Court of Appeal dismissed the claims, asserting that men were discriminated against, not women. This ignored the straightforward principle of ‘less favourable treatment’ on a protected characteristic or ground, whether looking to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), EU law, the European Convention on Human Rights (ECHR), or the 2010 Equality Act. Age and sex are protected characteristics. Targeting 1950s women to bear the brunt of the transition to 65 years meant they were subjected to less favourable treatment than men. Nothing changed for men: having planned their employment and retirement plans for their 65th birthday, unlike 1950s women they did not have to rearrange anything. The women had to rearrange their whole work-life and retirement plans. As to age, singling 1950s women out because they were born in that decade meant less favourable treatment on grounds of age: their date of birth meant, again, they had to rearrange retirement plans and stay on at work or beg for a job – not easy for anyone at an older age, and particularly not for women

The Supreme Court said the claim was ‘out of time’, without stating why. Yet as decisions susceptible to review are made each time the DWP electronically or manually calculates pensions according to age, the ‘delay’ contention is not sustainable and, in any event, was made without any argument or reasons. This, despite both the High Court and Court of Appeal having granted leave to appeal on all grounds in the claim – meaning that both considered there to be an arguable case.

BackTo60 is now lobbying MPs to support 1950s women’s claims through an alternative dispute resolution (ADR) process. The terms of the resolution sought by BackTo60 in respect of all 3.9m women affected, are: an initial lump sum plus additional payments atop the State Pension paid over five years for those whose National Insurance Contributions (NICs) entitle them to compensation calculated according to monies forgone; no tax; free dental and optician care; and a named beneficiary should the 1950s woman die during the five-year period. Schedule 4 (and an amendment in the 2007 Pensions Act) shows some 1950s women owed several months restitution, whilst others would require calculation in years. The contention that the money ‘isn’t there’ ignores the women’s having paid in on the basis that their payments would ‘go’ to workers retiring at that time, and subsequent payments in would provide the moneys for their pensions.

In this pensions (lack of) pay-out debacle, 1950s women’s efforts indicate that the 1995 Conservative government and subsequent governments, in failing to redress 1950s women, have not only overlooked the women’s just claims. They have failed to understand that 1950s women cannot be treated with contempt. 1950s women matter, and refuse to go quietly.

Dr Jocelynne A. Scutt

Barrister and Human Rights Lawyer

CALL FOR ACTION

Call upon MPs to join Sir George Howarth's #ADRnow

https://twitter.com/2020Comms/status/1641014398088097792?t=svVR5Z68HSGmROWT2B7cVQ&s=19