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Neutral Citation Number:
Reported Number:	R(AF)2/09
File Number:	CAF 52 2006
Appellant:	Ratcliffe v Secretary of State for Defence
Respondent:
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	03/02/2009
Date Added:	08/11/2006
Main Category:	War pensions and armed forces compensation
Main Subcategory:	War pensions - entitlement
Secondary Category:	Human rights law
Secondary Subcategory:	article 14 (non-discrimination)
Notes:	Human rights – unmarried partner of deceased ex-serviceman – whether conditions for entitlement to service pension contrary to Article 14 of the Convention The claimant had lived with an ex-Royal Navy officer for 17 years, as husband and wife but not married, starting while he was serving. In 2004 he died from mesothelioma due to exposure to asbestos during service and she claimed a pension under the 1983 Service Pensions Order. She did not qualify as an unmarried dependant who had lived as a spouse because of the condition that the relationship had to have begun at least six months before the member’s service began and that the dependant had charge of a child of the service member. She appealed to a tribunal, arguing that the War Pensions Scheme discriminated in favour of married partners as against unmarried partners and/or in favour of unmarried partners who satisfied the criteria in the scheme as against other unmarried partners, contrary to Article 14 of the European Convention on Human Rights coupled with Article 1 of the First Protocol. The tribunal dismissed her appeal and she appealed to the Commissioner. The Commissioner upheld the decision of the tribunal, following CG/1259/2002 and R(G) 1/04 in holding that words like “widow” and “widower” have a plain meaning that cannot possibly be read otherwise than as restricted to the survivors of a legally recognised marriage. The Commissioner also held that there had not been a shift in the social and legal context or some development in case law that could be capable of constituting a good reason for not following Shackell v United Kingdom, 27 April 2000 (application no 45851/99), where it was held that the situation of an unmarried partner was not analogous with that of a widow for the purposes of Article 14, and that, even if the definition of “unmarried dependant who lived as a spouse” did involve discrimination between comparable groups and were therefore caught by Article 14, there was objective and reasonable justification for the discrimination. The claimant appealed to the Court of Appeal. Held, dismissing the appeal, that: 1. the decision whether a married and unmarried couple are in an analogous situation must be made in the light of the scheme under examination and since, by the end of 2003, unmarried couples were being treated substantially the same as married couples for the purposes of the Occupational Pension Scheme and the Government had announced that it would by 2005 be treating them the same for the purposes of the 2005 Order, by 2004 it would be wrong to say that married and unmarried couples were not, in the context of armed forces benefits, in an analogous position for the purposes of Article 14 (paragraph 72); 2. historically there was objective and reasonable justification for the distinction in the War Pensions Scheme between married and unmarried partners and between unmarried partners who fell within the very narrow criteria for a pension and other unmarried partners (paragraph 89); 3. the point at which discrimination that was historically justifiable becomes no longer justifiable is a matter for legislative judgment and the case fell within the well-established principle that, where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that the discrimination is not justified (R (Carson) v Secretary of State for Work and Pensions and another [2005] UKHL 37, [2006] 1 AC 173 followed) (paragraphs 52 and 89).
Decision(s) to Download:	R(AF) 2-09 bv.doc