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Pension Litigation – the members fight back! (Part 2)

In the first part of our focus on pension members fighting back we examined the actions taken by members of three high profile corporate schemes. However the same strategy has been adopted if people have suffered because of how the state pension rules operate, like the WASPIs, the Women Against State Pension Increases. Transgender individuals and same sex couples have also battled on behalf of their groups to try to obtain parity of treatment and again have had to fight their way through the courts, up to the Court of Appeal and the Supreme Court and beyond to obtain an acceptable solution to their particular set of circumstances. Finally we have seen a trade union group begin litigation to try to clarify the equalisation of guaranteed minimum pensions and obtain equality for their members – something that has seemed like many to be an insoluble pension problem.

So it’s not just corporate manoeuvrings that can result in members looking to the courts for redress. Changes in the law can also trigger litigation. There are, for example, the WASPIS, who have campaigned long and hard but currently at the moment unsuccessfully for a change to how the increases in state pension age applies to women who were born on or after 6 April 1951. Given the passage of time since the relevant laws were changed it is unlikely that the WASPIS will be able to bring a court action now successfully challenging these increases to state pension age.

However the law on the treatment of transgender people is still evolving and there has been a successful challenge to the Government, up to a point, in the Supreme Court in the case of MB about how transgender people should be treated for the purposes of receiving their state pension. In this case, the person had gone through a gender change but had remained married for religious reasons to their pre-gender change spouse. Because of this, the gender change was not officially recognised and the individual who had changed from being male to female was still regarded for the purposes of receiving their state pension as being male and so had to wait until they reached age 65 before they could receive their state pension. European legislation says that there is to be no discrimination, whether direct or indirect, by reference to marital or family status. The Supreme Court felt there was sufficient doubt about the application of this law in this particular case that they referred the question to the European Court of Justice for their input.

Same sex couples have also been challenging the law and their treatment in defined benefit schemes. Such schemes are only required to provide “spouses” benefits from 5 December 2005 when the Civil Partnership Act 2005 became law for civil partners. This same cut off date applies for same sex married couples when same sex marriages later became legal. In Walker v Innospec case, this cut off point was challenged on the basis that if Mr Walker’s spouse were of a different sex, then the pension payable on death would be £50,000 a year whereas what Mr Walker’s husband is likely to receive, because of the cut off, is actually a fraction of this, around £500 to £600. The Supreme Court is due to hear Mr Walker’s appeal in November 2016.

And if this wasn’t enough pension litigation, the trade union for Lloyds bank has just begun a court case to find out whether there is a legal duty to equalise guaranteed minimum pensions and if so the scope of that duty and how equalisation is to be achieved. These are questions that most pension professionals have put on the too hard and pointless pile. There seems to be no one correct answer to the question and the benefit to the individual member can be de minimis but the professional costs of trying to resolve the problem is disproportionately high so these are questions that many prefer to dodge and hope that the Brexit vote may mean that a simple solution can be found such as the Government passing legislation that guaranteed minimum pensions do not need to be equalised. As most public sector schemes have guaranteed minimum pensions there is a huge public interest in trying to find a practical solution to this problem.

Finally for those who missed it, the Pensions Ombudsman in a bid to gain more public recognition and awareness of his role, and to align himself and his office more closely to The Pensions Regulator and The Pensions Advisory Service has changed his formal name to The Pensions Ombudsman. I remain unconvinced of the usefulness of this change and the grammatical correctness of all of these titles. It’s not the approach adopted by Government offices, like the Home Office and I can’t see it will make much difference to the general public! They still won’t know which Ombudsman to go to if they have a pension problem – The Pensions Ombudsman or the Financial Services Ombudsman as it will depend on the type of pension they have. Additionally The Pensions Ombudsman will intervene in appeals in the High Court, and beyond, against his decisions where it is in the public interest for him to do so, although it must remain doubtful as to whether this is really a good use of his limited resources given how expensive pensions litigation is.

The latest news on Pensions for your business

September 2016

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Penny Cogher