CASE OF WALKER v. THE UNITED KINGDOM
No violation of Art. 14+P1-1
Josep Casadevall;Nicolas Bratza
8. The applicant was born in 1942 and lives in Shipston Stour, Warwickshire. 9. Under current United Kingdom law, the state pension age is 65 for men and 60 for women. Until these ages, men and women who work are required to pay national insurance contributions (“NICs”) if their earnings are above a threshold amount, currently 385 pounds sterling (GBP) per month. 10. The applicant is over 60 years old and works as an administrator. Since he has not reached the state pension age for men of 65, he is required to pay NICs on his earnings. At the time of introduction of the application, his monthly salary was GBP 2,970 and he paid 10% of his earnings (between the primary threshold of GBP 385 and the upper earnings limit of GBP 2,535) in NICs (Class 1), amounting to GBP 215 per month and GBP 2,580 per annum. From April 2003, NICs increased to 11% of the amount up to the upper earnings limit, plus an additional 1% on all earnings above the limit. The applicant’s NICs increased to GBP 241.34 per month. 11. The applicant will be required to pay national insurance contributions from his earnings until he reaches the age of 65. 12. A woman of 60 years or more who continued to work would not be required to pay any NICs on her earnings. 13. The applicant wrote to his Member of Parliament and the Paymaster General complaining about the difference in treatment for men and women. Both replied stating that since liability to pay national insurance contributions is linked to the state pension age, the treatment of men and women would equalise in 2020 when the state pension age will equalise. 14. The National Insurance Act 1946, which first established the basis for the national social security scheme in the United Kingdom, set out a system of funding under which all employers and the majority of the working population, whether employed or self-employed, are liable to pay compulsory NICs contributions. This legislation has since been replaced, most recently, by the consolidating provisions of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”) and the Social Security Administration Act 1992. 15. Section 1(2) of the SSCBA 1992 sets out the various classes of NIC. Of these, the largest category is Class 1 contributions which consist of earnings-related contributions paid by employers and employees. Such contributions are levied as a percentage of earnings which varies according to the employee’s earnings band. The NIC scheme is financed on a “pay as you go” basis, that is, current NICs fund current benefits: thus an individual’s contributions fund not his or her own benefits but those of others (R. (Carson) v. Secretary of State for Work and Pensions [2002] 3 All ER paragraphs 25-26). 16. A substantial contribution has been made to the National Health Service from NICs for many years. Following the National Insurance Act 2002, which imposed an additional deduction of 1% of earnings above the upper earnings limits, the element of calculation of the NHS allocation was also increased from 1.05% of earnings paid in the tax year to 2.05%. 17. Section 6(2) of the Act provides that only those under the state pension age are liable to pay NICs from their earnings. The state pension ages are currently set as 65 for men and 60 for women according to section 122. 18. Section 126 of the Pensions Act 1995 provides for the equalisation of state pension ages for men and women to the age of 65. The state pension age for women will increase gradually from 2010 and the equalisation will be complete in 2020. At the same time, the age until which women are liable to pay NICs will gradually increase in line with the increase in the state pension age. 19. Council Directive 79/7/EEC of 19 December 1978 provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security. However, in Article 7(1)(a) the Directive provides for derogation in the matter of “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences therefore for other benefits”. 20. In the Case C-9/91 The Queen v. Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR1-4297 (“the EOC case” concerning reference for a preliminary ruling from the High Court), the European Court of Justice found that: Article 7(1)a had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old-age and retirement pensions and also forms of discrimination which are necessarily linked to that difference; Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where, having regard to the financial equilibrium of the national pension system in the context in which it appears, it cannot be dissociated from a difference in pensionable age; In view of the advantages allowed to women by national pension systems, in particular as regards statutory pensionable age and length of contribution periods, and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from one day to the next in respect of those periods, the Community legislature intended to authorise the progressive implementation of that principle by the member States and that progressive nature could not be ensured if the scope of the derogation authorised by Article 7(1)a were to be interpreted restrictively. (Summary of judgment)