CEDH · CASELAW;CLIN;ENG — 16 mars 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 128 March 2010 Carson and Others v. the United Kingdom [GC] - 42184/05 Judgment 16.3.2010 [GC] Article 14 Discrimination Absence of right to index-linking for pensioners resident in overseas countries which had no reciprocal arrangements with the United Kingdom: no violation   Facts – This case concerned allegedly discriminatory rules governing the entitlement to index-linking of the State pension. Under the rules, pensions were only index-linked if the recipient was ordinarily resident in the United Kingdom or in a country having a reciprocal agreement with the United Kingdom on the uprating of pensions. Those resident elsewhere continued to receive the basic State pension, but this was frozen at the rate payable on the date they left the United Kingdom. The thirteen applicants had spent most of their working lives in the United Kingdom, paying National Insurance contributions in full, before emigrating or returning to South Africa, Australia or Canada, none of which had a reciprocal agreement with the United Kingdom on pension uprating. Their pensions were accordingly frozen at the rate payable on the date of their departure. Considering this to be an unjustified difference in treatment, the first applicant sought judicial review of the decision not to index-link her pension. However, her application was dismissed in 2002 and ultimately on appeal before the House of Lords in 2005, inter alia , on the grounds that she was not in an analogous, or relevantly similar, situation to a pensioner resident in the United Kingdom or in a country where uprating was available through a reciprocal agreement. In a judgment of 4   November 2008 (see Information Note no.   113) a Chamber of the Court held by six votes to one that there had been no violation of Article   14 of the Convention, taken in conjunction with Article   1 of Protocol No.   1. Law – Article 14 of the Convention in conjunction with Article   1 of Protocol No.   1: (a)   Scope – The Grand Chamber agreed with the Chamber that the applicants’ case fell within the scope of both Convention provisions. Firstly, it was undisputed that where, as here, a State had decided to enact legislation providing for the payment as of right of a welfare benefit or pension, that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article   1 of Protocol No.   1 for persons satisfying its requirements. As to Article   14, although only differences in treatment based on a personal characteristic (or “status”) were capable of amounting to discrimination, the list of such characteristics in that provision was illustrative and not exhaustive, and the words “other status” had been given a wide meaning by the Convention institutions. Accordingly, place of residence constituted an aspect of personal status for the purposes of Article   14. (b)     Relevantly similar position – The applicants’ principal argument that, because they had worked in the United Kingdom and paid compulsory contributions to the National Insurance Fund, they were in a relevantly similar situation to pensioners who received uprating was misconceived. Unlike private pension schemes, where premiums were paid into a specific fund and were directly linked to the expected benefit returns, National Insurance contributions had no exclusive link to retirement pensions but formed part of the revenue which paid for a whole range of social-security benefits. Where necessary, the National Insurance Fund could be topped-up with money derived from the ordinary taxation of those resident in the United Kingdom, including pensioners. The variety of methods for funding welfare benefits and the interlocking nature of the benefits and taxation systems made it impossible to isolate the payment of National Insurance contributions as a sufficient ground for equating the position of pensioners who received uprating and those, like the applicants, who did not. Moreover, as regards the comparison with pensioners living in the United Kingdom, it had to be remembered that the social-security system was essentially national in character with the aim being to ensure certain minimum standards of living for residents there. This made it hard to draw any genuine comparison with the position of pensioners living elsewhere, owing to the range of economic and social variables – such as rates of inflation, comparative costs of living, interest rates, rates of economic growth, exchange rates, social-security arrangements and taxation systems – that were capable of affecting the value of the pension from one country to the next. As the domestic courts had noted, index-linking for all pensioners, wherever they had chosen to live, would inevitably have had random effects while, unlike residents, non-residents did not contribute to the United Kingdom’s economy by paying tax there to offset the cost of any increase in the pension. Nor did the Court consider the applicants to be in a relevantly similar position to pensioners living in countries with which the United Kingdom had concluded a bilateral agreement providing for uprating. Those living in reciprocal-agreement countries were treated differently from those living elsewhere because an agreement had been entered into; and an agreement had been entered into because the United Kingdom considered it to be in its interests. Bilateral social-security treaties were entered into on the basis of judgements by both parties as to their respective interests and could depend on various factors, among them the numbers of people moving from one country to the other, the benefits available under the other country’s welfare scheme, how far reciprocity was possible and the extent to which the advantages to be gained by an agreement outweighed the additional expenditure likely to be incurred by each State in negotiating and implementing it. Where an agreement was in place, the flow of funds could differ depending on the level of each country’s benefits and the number of people going in each direction. It was the inevitable result of such a process that different conditions applied in each country depending on whether or not a treaty had been concluded and on what terms. It would be extraordinary if the fact of entering into bilateral arrangements in the social-security sphere had the consequence of creating an obligation to confer the same advantages on all others living in all other countries. Such a conclusion would effectively undermine the right of States to enter into reciprocal agreements and their interest in so doing. In sum, the applicants were not in a relevantly similar position to residents of the United Kingdom or of countries which were party to such agreements. Conclusion : no violation (eleven votes to six).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes