Case No: CH/2014/0464
Neutral Citation Number: [2015] EWHC 875 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/03/2015

Before :

TIMOTHY FANCOURT QC
sitting as a Deputy Judge of the High Court
- - - - - - - - - - - - - - - - - - - - -
Between :

	Jane Langford	Claimant	
	- and -		
	Secretary of State for Defence	Defendant	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Fergus McCombie (instructed under the public access scheme) for the Appellant
Tim Buley (instructed by Treasury Solicitor) for the Respondent

Hearing date: 18 March 2015
- - - - - - - - - - - - - - - - - - - - -
Judgment
TIMOTHY FANCOURT QC :  : 
Introduction
1.	The Appellant was the longstanding partner of Air Commodore Christopher Green (“ACCG”) before his unexpected death on 17 May 2011.  ACCG was a member of the Armed Forces Pension Scheme (“the Scheme”), constituted by The Armed Forces Pension Scheme Order 2005 (S.I. 2005 No.458).
2.	Under the Scheme, the rules of which are set out in Schedule 1 to the Order, death benefits are payable to (among others) a surviving spouse or civil partner of a member and to other “adult dependants”.  Rules E.1 and E.2 provide (so far as material):
“E.1(1)		If an active member, a deferred member or a pensioner member dies leaving a surviving spouse or civil partner, the surviving spouse or civil partner is entitled to a pension for life ...
E.2(1)		If an active member, a deferred member or a pensioner member dies leaving a surviving adult dependant and no surviving spouse or civil partner, the Secretary of State may award the surviving adult dependant a pension for life.   
(2)	……...
(3)	A person is a surviving adult dependant in relation to a member for the purposes of this rule if the person satisfies the Secretary of State that at the time of the member’s death – 
(a)	the person and the member were cohabiting as partners in an exclusive and substantial relationship,
(b)	the person and the member were not prevented from marrying (or would not have been so prevented apart from both being of the same sex), and
(c)	either the person was financially dependent on the member or the person and the member were financially interdependent.”
3.	On 25 July 2011, the Service Personnel and Veterans Agency, which administers the Scheme, wrote to the Appellant explaining that, as she was married to her husband, Alan Langford, she was not eligible for benefits under the Scheme.  The Appellant appealed, without success, under the Scheme’s internal dispute resolution procedure.  She then complained against that determination to the Pensions Ombudsman.  
4.	In a written determination made on 14 April 2014, under section 146(1)(c) of the Pension Schemes Act 1993, the Deputy Pensions Ombudsman dismissed the complaint on the ground (essentially) that the Agency had applied the rules of the Scheme correctly and that the Scheme did not discriminate unlawfully against persons in the Appellant’s position, namely those who were, at the time of the Scheme member’s death, prevented from marrying the Scheme member.  
5.	Under section 151(4) of the Act of 1993, an appeal on a point of law arising from any determination lies to the High Court.  The Appellant was granted permission to appeal (out of time) by Proudman J on 2 October 2014.  
6.	The grounds of appeal are essentially two‑fold:
(1)	that on the true construction of the Scheme the Appellant and ACCG were not “prevented from marrying” on the date of his death, and 
(2)	that, if they were so prevented, the Scheme thereby unlawfully discriminates against the Appellant by treating her differently from an unmarried person, contrary to Article 14 of, and Article 1 of the First Protocol (“A1P1”) to, the European Convention on Human Rights (“ECHR”).  
7.	Appellant’s particular circumstances were that she had separated from her husband in 1993; had been living with ACCG as his partner for about 15 years prior to his death, and was financially dependent on him, having retired in 2007.  She had, however, never been divorced from her husband.  Shortly before ACCG’s death, the Appellant and he had been planning to get married.  They had taken no steps to initiate divorce proceedings, but their general preparations had been put on hold for various personal reasons.  On the date of ACCG’s death, therefore, the Appellant was married to her husband and could not lawfully have married ACCG.  
Issue 1:  Meaning of Rule E.2
8.	The Appellant submits that the words “were not prevented from marrying” in rule E.2(3) include a case such as hers, where, although one of the parties was married to another, that person would be able to obtain a divorce in order to re‑marry.  It is suggested that the words are concerned to identify only those cases where there was an immovable legal impediment, such as consanguinity, or perhaps those cases where it was not clear that the impediment could be removed without difficulty, or as an administrative act.  In support of this argument, the Appellant points out that, on the date of ACCG’s death, they would not lawfully have been able to marry without having completed various statutory formalities that are required before a marriage can take place.  
9.	I have no hesitation in rejecting this argument.  In my view, the case of a person unable to marry because of a subsisting marriage to another is the paradigm case to which rule E.2(3)(b) is directed.  Indeed, it is difficult to think of another case that the rule would catch, since being a partner of the same sex is expressly excluded in this regard by the rule itself.  The only other obvious categories of person unable to marry would be the cases of prohibited consanguinity and youth.  However, since rule E.2(3)(a) requires a surviving adult dependent to be cohabiting as the partner of the member in an exclusive and substantial relationship, it is inherently improbable that rule E.2(3)(b) was intended to capture those cases.  Other possible categories, such as a patient whose right to marry has been lawfully taken away by court order, seem so theoretical and rare as to be far removed from the main purpose of the rule.  
10.	As to the argument that the rule would not apply where a divorce would be regarded as only an administrative matter, this introduces a distinction that is neither justified by the language nor simple to apply in practice.  The natural reading of rule E.2(3)(b) is that it is concerned with the existence on the date of death of a legal impediment to marriage.  An existing marriage, of either the member or the adult dependant, is such a legal impediment.  No doubt in many cases a divorce could be regarded as something that the married person had a right to obtain, in time; in many other cases that would not be so.  
11.	It is inherently unlikely that Parliament intended the Scheme administrator to have to investigate the state of the surviving dependant’s marriage, and form a view on the likelihood of a divorce being able to be obtained routinely, in order to administer the Scheme.  Nor is it clear how routinely or easily a divorce would have to be achievable.  The unlikelihood of such matters being material in relation to the dependant’s marriage is in my view emphasised by the fact that a subsisting marriage (or civil partnership) of the member on the date of death would be an absolute bar to any pension under rule E.2.  
12.	What was obviously intended was that if either the member or the adult dependent was married on the date of death, the entitlement under rule E.2 would not arise.  In my judgment, therefore, the first ground of appeal fails: the Appellant and ACCG were, on the date of his death, prevented from marrying by virtue of the Appellant’s subsisting marriage.
Issue 2:  Unlawful discrimination 
13.	The Appellant contends, as she contended before the Ombudsman, that the Scheme discriminates against her, as a married person, and is therefore unlawful in that her putative right to death benefit under the Scheme is taken away from her as a result of discrimination on grounds of her married status, contrary to Article 14 of ECHR.  
14.	It is common ground, on this appeal, that the putative right to Scheme benefits is property within A1P1 of ECHR.  It is also common ground that the Appellant has been subjected to differential treatment within the ambit of the Convention right provided by A1P1.
15.	The questions that arise on this appeal are whether:
(i)	The Appellant’s inability to marry on the ground of her existing marriage was a “status” within Article 14;
(ii)	If so, whether the position of a dependant adult who was not prevented from marrying is analogous to the Appellant’s position, and
(iii)	To the extent that there is an analogy, whether the differential treatment of the Appellant and such a person is justifiable in law.
16.	The Ombudsman held that the Appellant was not treated differently because of her marital status, but because she was not free to marry ACCG.  Her position was not analogous to someone who was free to marry the member but chooses not to do so, or to someone who was married to the member.  Her position was more akin to that of a dependent sibling.  On that ground, differential treatment was justified and the Rules were not unlawful.
17.	On the question, first, whether the Appellant’s status of being married to another and so unable to marry the member is a “status” within the meaning of Article 14, the leading authority is R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63; [2009] 1 A.C. 311.  In that case, Lord Neuberger of Abbotsbury concluded that what is required to be established in a domestic court is a “personal characteristic”, but that this itself should be liberally and generously applied (paras 41, 42).  In the same case, Lord Walker of Gestingthorpe described a spectrum of what might be called “personal characteristics”, some very clear and some debatable, and stated that the more debatable a characteristic is the more readily discrimination on that basis might be justified (para 5).  
18.	In my judgment, the Appellant’s status of living with one person as a life partner while remaining married to another can properly be described as a “personal characteristic”, notwithstanding that in most such cases it will be a voluntary status.  Indeed, it is natural to describe her position as a status, as I have done, just as the binary distinction between married and unmarried persons is recognised to be a matter of status: Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39.  The fact that it is a sub‑set of married persons does not seem to me to deprive it of recognition as a personal characteristic.  
19.	The Appellant was subjected to differential treatment because she was unable to marry ACCG, on account of her marriage to Mr Langford.  The fact that the Scheme Rules do not discriminate in other respects between those married to Scheme members and those unmarried seems to me to be beside the point: the Appellant’s complaint is that the Rules discriminate against her because she was married and could not marry ACCG.
20.	It is firmly established that, where differential treatment on the ground of status exists, the questions of whether the comparator (who is better treated) is a true analogue (in other words, whether that case and the case in issue are alike) and whether differential treatment is justified can merge into one another: see R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 A.C. 173 at [3], per Lord Nicholls of Birkenhead, and AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42; [2008] 1 WLR 1434 at [25], per Baroness Hale of Richmond.  The more alike cases are, the greater the justification may need to be, and vice‑versa: Carson at [14], per Lord Hoffmann.
21.	There is, objectively, a difference between a person who is dependent on another and is free to marry, even if they choose not to marry, and a person who is dependent on another but is not free to marry because one of them is already married.  The question of whether the comparator is in an analogous position has to be answered by reference to the scheme under examination: Ratcliffe at [72], per Hooper LJ.
22.	A person who is married may be expected, in the majority of cases, to have some claim on their spouse (or civil partner) for financial support, if needed.  If the person who is married is the Scheme member, there will by definition be another person who is entitled to a pension under the Scheme, under Rule E.1.  The status of being unable to marry because of a subsisting marriage does therefore present a relevant difference so far as the allocation of benefits under the Scheme is concerned.  
23.	On the other hand, I would not agree with the Ombudsman that the position of the Appellant is analogous to a sibling.  The sibling, like a married adult dependant, cannot marry the member; but the sibling will not (it must be assumed) satisfy the requirement of cohabitation as partners and could not be an “adult dependant” within the meaning of the Scheme for that reason.  Nevertheless, in my view, there is a material difference, for the purposes of the Scheme, between the Appellant and a person living with a non‑married member who is free to marry, even if there are also similarities.  
24.	The difference that exists – presence of another marital relationship – provides the justification for differential treatment.  In the case of a “non-suspect” ground of discrimination, as in this case, the standard of justification required for differential treatment is low.  Where discrimination on a “suspect” ground of sex was involved in relation to payment of child benefit, the test for whether differential treatment could be justified was nevertheless the low one of whether the treatment was “manifestly without reasonable foundation”: Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545 at [19], per Baroness Hale of Richmond.
25.	Where differential treatment on a “non‑suspect” ground is concerned, the test is less onerous, particularly where the case concerns the allocation of public funds on benefits.  In the Ratcliffe case, the Court of Appeal upheld the distinction in an earlier version of the Scheme between the entitlement of married and unmarried partners and found this to be justified by public policy considerations.  Hooper LJ said, at [89]:
“At the end of the day this case, in my view, falls squarely within the now well‑established principle that where alleged discrimination of the field of pensions is based on non‑suspect grounds, courts will be very reluctant to find that the discrimination is not justified.  Whatever the position today, historically the distinction in the War Pension Scheme between married and unmarried partners and between unmarried partners who fell within the very narrow criteria for a pension and other unmarried partners was justified.  In 2003 the Government recognised that the distinction was no longer justified, altered the Occupational Pension prospectively and announced its intention to make changes to the War Pension Scheme from some time in the future but also prospectively.  The decision as from what point in time unmarried partners are put in an analogous position to spouses in the field of pensions is a decision for the Government and is a decision with which the courts will not normally interfere.  In the words of Laws LJ (para 51 above):
“In the field of what may be called macro‑economic policy, certainly including the distribution of public funds upon retirement pensions, the decision‑making power of the elected arms of Government is all but at its greatest, and the constraining rule of the courts, absent a florid violation by Government of established legal principles, is correspondingly modest.””
26.	If that conclusion was right where differential treatment resulted simply from being unmarried to the member, it seems to me necessarily to apply more strongly where the difference depends not on the dependant being unmarried but on either the dependant or the member being married to someone else and so unable to marry.  That difference produces what is termed a “bright line” between the different categories, but if different treatment is justified (to the low standard) in the generality of cases, as in my judgment it is, it does not become unlawful because, in an egregious case like that of the Appellant, it appears to operate harshly. 
27.	For these reasons, there is no unlawful discrimination in the Appellant’s case and her appeal must be dismissed.