| MILITARY LAW — Pension — Marital status — Unmarried surviving female partner of deceased naval officer ostensibly excluded from War Pensions Scheme — Whether exclusion on basis of marital status discriminatory — Whether justifiable — Human Rights Act 1998, Sch 1, Pt I, art 14 — Naval, Military and Air Forces, Etc (Disablement and Death) Service Pensions Order 1983 (SI 1983/883)
Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39; [2009] WLR (D) 33
CA: Ward, Wall, Hooper LJJ: 3 February 2009
A woman who had been the partner of a naval officer for over 25 years at the time of his death from disease said to derive from exposure to asbestos during his employment was in an analogous situation to that of a married woman. However, the Secretary of State for Defence was able to justify a distinction in war pension entitlement between her case and that of a married survivor.
The Court of Appeal so held when dismissing the appeal of the claimant, Barbara Nan Ratcliffe, from a decision of the Pensions Appeal Commissioner (Mr J Mesher) on 7 October 2006, upholding a decision by the Pensions Appeal Tribunal of 10 November 2005, dismissing an appeal against a decision by the defendant, the Secretary of State for Defence, on 29 April 2004, rejecting the claimant’s application for a war pension under the Naval, Military and Air Force, Etc (Disablement and Death) Service Pensions Order 1983. The claimant had been the unmarried partner of a naval officer, K, for more than 25 years at the time of his death in January 2004 from an illness said to be caused by exposure to asbestos during his employment. The grounds of appeal were that the War Pensions scheme in force at the time of K’s death, and which remained in force for all deaths and injuries in service prior to 6 April 2005, was discriminatory against the claimant as an unmarried partner and should be read down or declared incompatible to the extent to which it discriminated in favour of married partners as against unmarried partners and also discriminated in favour of unmarried partners who fulfilled certain limited criteria.
HOOPER LJ said that under the relevant Order in Council an unmarried partner of a member of the armed forces whose death was due to service, but in circumstances where the death was caused by an act or omission which occurred before 6 April 2005, was not eligible to a war pension except in circumstances so rare that they might almost be ignored. However, if the death was caused by an act or omission which occurred on or after that date then in general terms the unmarried partner would be entitled to a war pension. Looking to the issue of discrimination, his Lordship differed from the finding that the claimant and K were not in an analogous situation to that of a married couple: the decision whether a married and unmarried couple were in an analogous situation had to be made in the light of the scheme under examination; and by the end of 2003 unmarried couples were being treated substantially the same as married couples for the purposes of a related occupational pension scheme, and the Government had announced that it would by 2005 be treating them the same for the purposes of a proposed new Order (the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 (SI 2005/439)). Thus at the time of K’s death it would be wrong to say that a married and unmarried couple were not in the context of armed forces benefits in an analogous position for the purposes of art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Next, the claimant had highlighted certain areas in which discrimination was said to exist, but the claims failed because the Secretary of State was able to justify the alleged discrimination: in particular, in considering whether the alleged discrimination should have been remedied retrospectively, although there was no absolute rule that the courts could not order retrospective payments to cure unjustified discrimination the case fell within the established principle that where alleged discrimination in the field of pensions was based on non-suspect grounds the courts would be very reluctant to find that the discrimination was not justified; and the decision from what point in time unmarried partners were to be put in an analogous position to spouses in the field of pensions was a decision for the Government, and one with which the courts would not normally interfere.
WALL and WARD LJJ agreed.
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