In 2002 Carson brought a legal action against the UK Government seeking Judicial review of its ‘frozen pension’ policy. The case contended that the failure of the UK Government to pay to pensioners resident in certain overseas countries the annual inflation uprating to their UK State Pension, which was paid to residents in other countries, constituted discrimination in contravention of the Human Rights Act 1998 based on EU Human Rights legislation. The UK State Pension was payable in countries like the UK, the European Economic Area (EEA) and a number of disparate countries (the United States, for example), whilst not being payable in predominantly Commonwealth countries such as Australia, Canada, New Zealand and South Africa. The civil action was held in the Administration Court of the Queens Bench Division of the High Court. Carson lost her case, with the Honourable Mr. Justice Burnton saying that the decision to uprate the UK State Pension was legislative rather than judicial. Justice Burnton said that he:
“Understood how very many of the expatriate UK pensioners who do not receive uprated pensions have a strong and understandable sense of grievance……They feel that they have been deprived of an increasingly substantial part of the fruit of their contribtions……as a result, they have formed associations to press their cause for equal treatment”.
The United Kingdom is the only OECD country that discriminates between pensioners living in different overseas countries.
The Government argued that successive Governments have taken the view that increases in the UK State Pension were based on economic factors within the UK, and it would be unfair on UK tax payers to incu
Justice Burnton also stated that:r additional taxes to support those residents that have chosen to live abroad.
“…a government may lawfully decide to restrict the payment of benefits of any kind to those who are within its territorial jurisdiction, leaving the care and support of those who live elsewhere to the governments of the countries in which they live. Such a restriction may be based wholly or partly on considerations of cost, but having regard to the wide margin of discretion that must be accorded to the government, I do not think it one that a court may say is unreasonable or lacking in objective justification”.
Justice Burnton concluded that the decision as to whether expatriate UK pensioners received state pension benefits (including any annual increases) was a political decision, rather than a judicial one and he therefore dismissed the case, but he gave leave to appeal.
Costs were awarded against Carson.