WASPI Campaign's legal action is morally wrong

I haven't written a post about WASPI for a very long time. I felt I had said everything I wanted to say, and it had become evident that the WASPI campaign and its offshoots had neither the widespread support nor the legal arguments that they claimed. Labour's proposed £58bn payment to WASPI women contributed to its disastrous defeat at the 2019 General Election. And in 2020, the hardline Back to 60 group's bid to overturn their state pension age rises failed in the Court of Appeal. The Government had no intention of compensating WASPI women for their lost pensions, and there was neither legal nor political means to force it to do so. The campaign seemed, in short, dead in the water. 

But it seems it isn't, quite. Some years ago, WASPI campaign received legal advice that a challenge to the legislation would almost certainly fail but that there might be a case for maladministration on the part of the DWP. Women would have to make individual maladministration claims and would have to prove that they had suffered material financial loss as a consequence of the DWP's failure to administer the 1995 and 2011 Pensions Acts properly. WASPI's lawyers, Bindmans, provided templates for women to make claims against the DWP. Thousands did so. 

The progress of the maladministration claims was necessarily paused during Back to 60's legal action. Part of Back to 60's argument was that the DWP was legally obliged to notify women individually of the rise in their state pension age and had failed to do so. If true, this would be maladministration. There was therefore a clear conflict with the individual maladministration claims put forward by WASPI women. Back to 60's failed legal action thus caused significant delay to WASPI's attempt to obtain compensation for its supporters. 

But in June 2021, the Parliamentary and Health Service Ombudsman (PHSO) found that there had been maladministration in the DWP's rollout of state pension age rises under the 1995 Pension Act.  

The PHSO does not find that the raising of state pension ages for women born in the 1950s was illegal. Indeed, he has no power to do so. That power rests with the courts. The Court of Appeal dismissed Back to 60's argument that the Pension Acts 1995 and 2011 unfairly targeted women born between between 6/4/1950 and 5/4/1960 and therefore constituted direct and indirect discrimination on grounds of age, sex and age & sex combined. The Supreme Court refused a further appeal. 

The PHSO also has no power to overturn the Court of Appeal's finding that the DWP had no legal obligation to write women individually to notify them of the state pension age rises. However, the PHSO's maladministration finding nevertheless concerns the way the DWP went about notifying women.

In 2006, the DWP decided to write to women individually after a survey revealed that a significant number of women, particularly poorer and less well educated women, didn't know their state pension age. But it then delayed writing to them for another 28 months. This delay is the maladministration that the PHSO has found.

The PHSO has now considered what financial redress should be paid to women affected by the maladministration. He has yet to publish his recommendations, but leaked information suggests a figure of about £1,000 per woman. And this is where the WASPI campaign's misinformation starts.

When considering financial redress for maladministration, the PHSO's stated aim is to "put the person affected back into a position where they would have been, had there not been a negative impact on them." This was also the original WASPI claim as stated by Anne Keen, one of WASPI campaign's co-founders, in evidence to the Work and Pensions Select Committee. But there's an enormous difference. Whereas the PHSO is only concerned with compensation for maladministration, the WASPI claim was for compensation for the loss of state pension from 60. In other words, to negate the intended effect of the 1995 and 2011 Pensions Acts. 

The WASPI campaign no longer states this aim explicitly on its site. Until recently, it demanded a "bridging pension".  But because many 1950s women are now receiving their state pensions, WASPI campaign has changed its demand. It now wants a lump sum to compensate women for the pension that they did not receive between the age of 60 and their eventual state pension age: 

The initial aim of the WASPI Campaign was to achieve fair transitional arrangements for all women affected by the rapid increase to the SPA, with little notice to make alternative arrangements. This translated into a ‘bridging’ pension to provide an income until State Pension Age, not means-tested, and with recompense for losses for those women who have already reached their SPA. There are no specific age groups within the period mentioned above that are favoured above others.

The Campaign has been going since 2015 and much has changed in that time. Most women affected have now reached their State Pension age. So, a bridging pension would not be relevant. For them, and in fact for all women a lump sum in compensation for the lack of notice received, commensurate with the degree of loss suffered, would be a more equable solution.

On the face of it, this would appear to be a demand for compensation for the state pension age rises themselves, not redress for maladministration in the DWP's handling of them. The WASPI campaign's "ask" has never really changed. And neither have the expectations of its supporters. Conversations on Twitter and Facebook show that many WASPI women expect the PHSO to give them their lost pensions. 

There are six levels of redress that the PHSO can recommend for maladministration, ranging from a mere apology (Level 1) to compensation payments of £10,000 or more (Level 6). But the PHSO's guidelines say Level 6 compensation is reserved for the most serious cases, cases where there has been loss of life, reduced life expectancy or permanent injury.  

WASPI argues that the 6-year delay to their pension has had such effects on many women. And it therefore told supporters to expect Level 6 compensation. But distressing though it is to read stories of women dying before receiving their state pension or having to live on wholly inadequate disability and sickness benefits, this is the intended consequence of the legislation itself

The PHSO is not empowered to recommend an award that would compensate women for the effects of the legislation itself:

Many complainants have told us they are seeking reinstatement of their State Pension, the State Pension age to revert to 60, and/or compensation for the amount of State Pension they would have received had their State Pension age not changed.

A 2019 High Court decision underlined that we are not able to recommend DWP reimburse ‘lost’ pensions. Nor can we recommend that anyone receive their State Pension any earlier than the law allows or gets more State Pension than they are entitled to. To do so would amount to us recommending DWP reverse or try to reverse primary legislation. 

The delay to the pension is not maladministration. The PHSO cannot recommend that women be compensated for it. And although many WASPI women said they had suffered serious losses as a result of maladministration, the PHSO did not find that the delay in writing to them caused the injustices that they claimed.  

The proposed legal action by WASPI would judicially review the PHSO's proposed compensation award with a view to increasing this award significantly. The case rests on a technical disagreement over the way the PHSO calculated the effect of the notification delay on women. WASPI's lawyers argue that the method the PHSO used enabled it to discount losses suffered by some women, whereas had it used a different method, it might have to compensate them for these losses and the amounts could be considerable. But they have to show that it was irrational for the PHSO to use the method he did, and this is a high bar. Judicial reviews of PHSO decisions tend not to end well for the claimants.

But even if the judicial review succeeded, the PHSO would still be unlikely to award the amount of compensation that the WASPI campaign has led its supporters to expect, because he cannot make an award that would negate the intended effect of the legislation. And anyway, the final decision regarding compensation rests with the Government. The Government is under no obligation to pay what the PHSO recommends: indeed it doesn't have to pay anything at all. So this looks like yet another delaying tactic by a failed campaign to avoid having to admit it has lost. 

It grieves me to see WASPI raising women's hopes yet again, and worse, soliciting money from them that they can ill afford to fund what looks to me like a hopeless case. I really, really don't think WASPI should have any publicity for this futile attempt to secure money it should never have led women to expect.

Furthermore, I fundamentally oppose substantial compensation awards for state pension age rises. A compensation award of the level sought by WASPI would cost £billions. This would have to be funded either by additional government borrowing, by diverting government spending from other areas, or by higher taxes. Additional government borrowing would potentially have inflationary consequences requiring higher interest rates, which would hurt young families with mortgages and young people renting properties from landlords with mortgages. Diverting government spending would potentially mean cuts to benefit payments, affecting some of the poorest people in the land, or front-line services that are already seriously overstretched. And higher taxes would mean taking money from people whose state pension ages are already higher than those of WASPI women, many of whom are significantly less wealthy than people of the WASPI generation and likely to remain so. It's simply not fair to take even more money from younger generations to give to women of the wealthiest generation in history.

There is another reason, too, why I believe compensation for WASPI women is the wrong solution. Part of the reason for the distress some WASPI women are experiencing is the severe cuts to working-age benefits over the last decade or so. There is now a huge difference in income between state pensioners and people below state pension age who are unable to work because of illness, disability, caring responsibilities or unemployment. WASPI women who have to claim benefits to cover the time between their expected state pension at 60 and their actual state pension age are living in poverty, which they would not have been had they received their state pension at 60. But the solution is to reverse the cuts to working-age benefits and reform the harsh means-testing and fitness-to-work regimes to make them more suitable for older people, not to give WASPI women a bridging payment while leaving other groups (such as men of the same age) struggling to survive. If additional money is to be spent, I'd much rather it went into uprating working-age benefits and properly funding health and social care.

Finally, and at the risk of boring long-term readers of this blog, I'd like to quash a few myths about the state pension. WASPI women often say that they have "paid for" their state pensions through NI contributions, and that the government has "robbed" them by raising their state pension age. Some of them claim that the reason why their state pension age was raised was that previous governments diverted the state pension "pot" to other purposes. Unfortunately none of this is true. No-one "pays for" their own state pension. People's NI contributions aren't payments into a pension fund, they are hypothecated taxes that fund a range of welfare benefits -- contributory JSA, ESA, statutory maternity benefit, bereavement benefit, a couple of other small benefits and, of course, the state pension. They also part-fund the NHS. Because of longevity increases, baby boomers retiring, and the triple lock increasing state pensions above inflation, the state pension now takes almost all of the NI contributions that don't go to the NHS. And far from raiding National Insurance, the government in 2014-16 contributed an additional £14.2bn from general taxation to ensure that state pensions and other benefits could continue to be paid when NI contributions fell in the early 2010s. Without the state pension age rises that have affected WASPI women and are now affecting younger people, the state pension would eat up an ever-larger proportion of government spending, to the detriment of the rest of the people of the UK.

So while I agree that the state pension rises affecting WASPI women could have been better handled - particularly the 2011 acceleration, which I think was grossly unfair to women born in 1953-54 - I don't think there is any case for reducing or eliminating their impact on the women concerned. That includes me. I am myself one of the women impacted. 

I was born a few days into 1960, so am not a 1950s-born woman. However, I have had exactly the same state pension age rises as women born October 1954 to December 1959, and like them was never personally informed. I am now 63 and have a little less than 3 years to wait for my state pension. But had the 1995 and 2011 rises never happened, I would now have been in receipt of my state pension for over three years. And contrary to the baseless claims made by WASPI women on Twitter and Facebook, I am far from rich. I cannot retire before my state pension age, and when I do reach it, I will be dependent on my state pension. 

I therefore understand why many 1950s-born women believe that they have unfairly suffered a material loss running to tens of thousands of pounds as a result of state pension age rises, and that they are entitled to compensation for this loss. Six years is a very long time to wait for a pension you believed you would receive from the age of 60.

But I'm afraid they are wrong. It distresses me to say this, but the loss we have suffered is the intended consequence of the 1995 and 2011 Pension Acts. We cannot, and will not, be compensated for this. The WASPI campaign's attempts to keep itself alive by leading women to expect compensation they will never receive are morally wrong.   

Related reading:

Now state pension ages are equalised, let's fix the real problems

WASPI's legal action for more compensation over state pension age changes is morally wrong, says economist - i newspaper


  1. The compensation in question is for the financial (and other) consequences of not being properly and promptly informed about the changes to the state pension age - not about the loss of the pension itself.


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