DWP MUST BE HELD TO ACCOUNT BY THE EHRC
Updated: Nov 24, 2019
Feisty Women is asking the UK Equality and Human Rights Commission (EHRC) to consider a judicial review based on the failure of officials at the Department for Work and Pensions (DWP) to comply with the Public Service Equality Duty (PSED) in relation to the 2011 Pension Reform Act. In our opinion, DWP officials told Ministers what they wanted to hear and failed to exercise this duty with the true spirit of equality in mind.
We trust that EHRC will recognise that the issue at stake is not state pension age for women but an equalities culture in the UK that has become dysfunctional. Modern-day, sex-blind theories that attempt to explain inequality for women are failing to produce solutions that work.
A simple truth has been lost - that the majority of women are unable to fulfil their potential in the workplace and society because they have the children.
A wealth of data shows that motherhood has a negative impact on women’s economic well-being and health. Pregnancy, child-birth and motherhood are not incidental activities but are the most important cause of inequality for women. Women experience an earnings gap across their lives because they shoulder the double burden of lower paid work and unpaid domestic labour.
Policy deciders, legislators and the judiciary appear to be blind to the contribution women make to the economy and the prosperity of the nation through their child-bearing. In the equalities landscape and in Government economic analyses, economic man is usually the default position.
But EHRC’s own 2018 report which asks if Scotland is fairer, describes inequalities for women and girls as stark. This is not in the interests of the economy or the population.
A good example of this type of flawed reasoning is the 2010 Equality Act which integrates all previous anti-discrimination laws into one Act. It was thought this would strengthen protections and advance equality of opportunity for all, but it has not. The 2010 Equality Act is not compatible with its own purpose and is therefore not fit for purpose.
Legislators, and policy makers seem to find it impossible to navigate their way through the tangled complexities of this new equalities landscape. The new competencies and knowledge needed to do so safely and fairly do not yet seem to exist. For example, the courts appear to take the view that inequality is best addressed through equality of treatment. This means the inequality of opportunity experienced by women because of child-bearing is increasingly becoming irrelevant. Poor equalities outcomes for women means urgent remedial action is required.
The EHRC has an important role to play in fixing the UK’s dysfunctional equalities culture. We believe it should not be for individual women to take on the cost, risk and burden of scrutiny of legal action.
THE JUDICIAL REVIEW ON WOMEN’S STATE PENSION AGE CHANGES
The Delve Judicial Review (October 2019) found that changes to state pension age for women were not discriminatory, but we at Feisty women believe there is still a case to answer.
We believe that officials at the DWP did not pay due regard to advancing equality of opportunity for women or to fostering good relations between women and men.
The 2010 Equality Act adheres to the principle of ‘substantive equality’. A government memo from 5 May 2009 explaining this principle states:
“In both EC and domestic law, it is accepted that in order to achieve full equality in practice, disadvantaged groups may actually require different treatment and equal treatment may perpetuate any disadvantage because not all groups start off from the same position”
Documents produced by officials at DWP assume there are no differences in the life experience and economic participation of women and men as they approach retirement. The assumption is that women and men ‘start off from the same position’.
That is staggeringly naive and is easily disproved by statistical evidence.
Promotion of equality of opportunity is not the same thing as elimination of discrimination. Compliance with PSED may mean treating some groups more favourably than others. We think that DWP officials gave no consideration to what is considered an” issue of substantive equality.”
Furthermore, DWP officials took no steps to promote understanding between women and men. This is evidenced by the campaigns, protests, political engagement and legal challenges mounted by fifties-born women, many becoming political activists for the first time in their lives. These protests have not abated over the last five years. DWP officials assumed that the unexpected 2011 acceleration of SPA for women in addition to the 5-year wait caused by the 1995 Pensions Act would not cause any friction or discord. How wrong they were.
We think that it’s reasonable for women to challenge DWP’s failure to comply with PSED at the time the new system was to be applied to individuals rather than a discrete moment back in time. PSED is a continuing process. We believe that time bar issues as quoted in the judicial review are therefore not relevant.
The UK Government Minister who approved the acceleration of SPA for women as a ‘fair and reasonable measure’ in 2011 was the Lib Dem, Steve Webb. In 2016, Steve Webb was reported in the national press, saying he had made a ‘bad decision’. He blamed officials at DWP who he says ‘produced a very poor briefing as to the implications of different choices’ At Ministerial level, it was recognised that DWP did not fulfil its duties adequately.
DWP AND FAKE NEWS
It’s worth noting that DWP has recent form for misleading voters and tax payers. In November 2019, the Advertising Standards Authority (ASA) found that DWP misled the public through a series of articles extolling the virtues of Universal Credit published in the Metro newspaper. These articles were presented as independent reporting. ASA determined that the ‘facts’ given in the articles were not true. This was fake news, commissioned and produced by unelected officials at DWP.
We firmly believe that in the 2011 Pension Reform Act, DWP officials told Ministers what they wanted to hear and in doing so, they failed to comply with the Public Service Equality Duty. Feisty Women wants to hold these officials to account.
Importantly, this case is not about state pension age for women. That is not Feisty Women’s interest. Our objectives are to improve the dysfunctional equalities culture in the UK and to help build a successful and prosperous economy.