Where are the pension rights for 1950s-born women?

In 2018 ‘BackTo60’ – campaigning for full restitution of moneys lost by 1950s born women (not for returning the pension age to 60 years) – ran a judicial review in the High Court and Court of Appeal. Both courts found against BackTo60, although both gave leave to appeal on all grounds, ultimately to the Supreme Court. Disappointingly, both courts saw men as discriminated against by the 60-65 pension age differential, existing since 1940. This omitted to recognise the reasons for the introduction of the differential and, more importantly, missed the point.

Under the Equality Act 2010 (and as standard discrimination law affirms) direct discrimination is less favourable treatment on the ground of a protected characteristic – here, age and sex. The Pensions Act 1995 introduced a regime that directly discriminated against 1950s-born women on the ground of both age and sex through explicit targetting. 

First,  sex. Men were not impacted at all by the change for women from 60 to 65. Men’s retirement and employment plans were not affected. Women’s were. Having planned for retirement at 60, women now had to revisit their plans, to their detriment. Furthermore, they had to beg employers to keep them on or search for a job to ensure them an income from 60 until they reached their new, and unplanned for, retirement age. In a job market unfriendly to older workers  and particularly older-age women, this is clearly difficult or impossible, as affirmed by evidence to the CEDAWinLaw Tribunal hearing on the Pension Act.

Many 1950s-born women left school at 14 or 15, worked in the local shop or factory or, if fortunate, gained a job in the post office or bank (where they could never, at the time, become tellers – but were consigned to lower-paid clerk and typing jobs. Some did become teachers or nurses (both low-paid professions) or did go to university. However, the 1960s and 70s, when 1950s women gained their majority, were very different from today when, although the wage gap remains a disgrace, women’s opportunities are greater.

Peter Lilley, in his Second Reading Speech, claimed an aim of the 1995 Act was to encourage employer pension membership – yet many 1950s women had no such possibility and, anyway, many had broken employment due to maternity, childrearing and supporting husband’s careers. 

Secondly, age. Schedule 4 ‘Equalisation’ in the 1995 Act set out the birthdates of 1950s women and when they would gain the state pension, some gaining it several months after their sixtieth birthday, some years after it. Many would not receive it on their birthdate, at whatever age they qualified. This means 1950s women as a group were less favourably treated than women born in any other decade (1940s women were explicitly exempted from the change and none but 1950s women were scheduled for the transition stage), and men born in any decade. Within the group, some 1950s-born women were treated less favourably than other 1950s-born women. 

When the case reached the Supreme Court, further failure to grasp the issues resulted in a dismissal, without any proper statement of reasons, as ‘out of time’. What date was selected for this contention is unclear. The date of the 1995 Act – if that is what the Supreme Court relied upon – is irrelevant. For judicial review, the key is decision-making. Every time the DWP calculates pension rights – whether electronically or manually – is a decision, and there lies a date upon which a claim can be made

On top of all this, failure to notify 1950s women left them in the lurch. Despite a legitimate expectation (after all, this is a significant economic change), some women have not been notified to this day. Some found out at random, from a friend, fellow worker or unionist – or even through an overhead conversation. For some, finding out came a month before they hit 60 years, or barely months before. An almost universal acknowledgment of maladministration within the Department of Works and Pensions (DWP) attests to this failure. In the BackTo60 judicial review it was argued for the DWP that the facility to notify 1950s women did not exist, overlooking P60s every employee receives – which could have carried a notice, and myriad other notification methods. Ironically (or consistent with a sex discrimination challenge) it was only when men were affected by the projected rise to 66 that the DWP began sending out any direct notifications, and it was only when men were affected that any Equality Impact Assessment was made.

Some 3.9m women are affected. Many have died, with health problems and desperation having an enormous impact on many more. Women – and some men supporters have taken to the streets once aware of the change, have contacted their MPs, and joined activist groups including BackTo60. Early Day Motions (EDMs) have been signed by MPs and petitions number signatures in thousands. Talks have been held with MPs and Sir George Howarth’s letter to the Prime Minister and Chancellor urging engagement through alternative dispute resolution (ADR) is signed by 38 MPs already, including leaders of five political parties – the True & Fair Party, Plaid Cymru, Alba Party, Green Party and DUP, with MPs Simon Fell and Peter Bone having pursued the matter in writing to the Secretary of State for Work and Pensions.

Some declare that fair and full restitution ‘is too much money’. Yet 1950s-born women paid into the National Insurance Scheme (NIS), the government using their monies to pay pensions of people retiring when 1950s women were paying in. Women paid in with a legitimate expectation that their payments would be honoured when their retirement age came. In not recognising the need for full restitution, the government retains the benefit of monies paid in by 1950s-born women, a ‘gift to government’ made by no one else. This is unjust enrichment on the government’s part and a denial to 1950s-born women of their legitimate entitlement. 

It is not for women to beg. It is for government to come to the table with 1950s-born women to acknowledge their due – and pay it.

Dr Jocelynne A. Scutt is a Barrister & Human Rights Lawyer