Our judicial review case against the Secretary of State for Work and Pensions: the details

As promised, we are now in a position to share our lawyers’ letter to the DWP which sets out our detailed legal arguments in the proposed judicial review claim. Here it is.

We have redacted (blanked out) the personal addresses of some of the officials to whom the letter has been sent.

We set out the arguments below. Before that, a very quick update on funding.

We are delighted to report that we have now exceeded our initial £75,000 fundraising target and so we are extending it to a ‘stretch target’ of £180,000. We believe this will cover much of the costs of the case beyond the ‘permission stage’ discussed in the last update plus what is needed to cover the Secretary of State’s costs if we lose as long as the Court is willing to make a special ‘cost capping order’. Such an order limits what each side can claim from the other if they win. We will say more about this in a later update to avoid this one becoming even longer. 

 What are WASPI’s key legal arguments?

 The key arguments are:

• In its July 2019 First Report, the PHSO found that the DWP had acted with maladministration in the communication of changes to State Pension age. The Ombudsman (PHSO) found that if DWP had made a reasonable decision in August 2005 and acted promptly, it would have written to affected women to tell them about the change to their State Pension age by, at the latest, December 2006. This means that women should have had at least 28 more months’ individual notice of the changes than they had and the opportunity that additional notice would have given them to adjust their retirement plans was lost.
• In March 2024, the PHSO’s final report concluded that the complainants had suffered injustice. The PHSO decided that the “primary injustice” was the denial of “opportunities to make informed decisions about some things and to do some things differently”, and the diminishment of the “sense of personal autonomy and financial control” that women who should have been sent letters sooner experienced.  The PHSO also found that there was “compounding” emotional injustice arising from maladministration in DWP’s complaints handling.  The PHSO indicated that he would have recommended payment of compensation of between £1,000 and £2,950 for each of the “sample complainants” and recommended that the DWP should provide a remedy for others who have suffered a similar injustice because of the maladministration he had identified.
• Case law (R (Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin)) has established that the PHSO has the primary task of assessing the nature of maladministration and its consequences and that, although the Secretary of State is entitled to disagree with the PHSO’s assessment but that disagreement must be based on “cogent” reasons and she must not disregard the PHSO’s assessment.  If it is not, the Secretary of State’s decision will be unlawful. 
• The Government has said that research conducted in 2014 using a survey shows that “if a person is sent a letter, it is unlikely to make any difference to what they know” and therefore that the PHSO’s conclusion that women who were not sent a letter, or who were sent a letter too late, have suffered injustice is “at best, highly speculative”.
• But we say that this reasoning is irrational and does not amount to a “cogent reason” for rejecting the PHSO’s conclusion that women suffered injustice. 
• The Government also says that there was no injustice and no justification for providing a remedy to 1950s born women because women knew their State Pension age was changing.  The Government relies on a survey called the ‘Attitudes to Pensions Survey 2006’, which it says shows that among women aged 45-54, 90% of women knew that the State Pension age was changing. 
• We say the Government was also irrational to rely on this survey.

Judicial reviews of this kind are unusual- not least because the Government normally accepts PHSO findings and recommendations. But we would not be the first to succeed. The leading case R (Bradley & Ors)) v Secretary of State for Work & Pensions & Ors [2008] EWCA Civ 36 was brought by members of our legal team.

 So, what is wrong with the Government relying on the 2014 survey to say the letters it delayed sending out to 1950s-born women made no difference?

 We say the 2014 survey does not support the Government’s decision at all because: 

• The 2014 survey concerned a “generic” letter which was very different to the letters that were sent to 1950s born women by the DWP.  The research concluded that a significant number of people could not recollect the general letter they had been sent and a portion of other persons said they had not read it through but had glanced at it.  However, the letters in the survey did not contain information specific to each individual concerning their pension; whereas the letters sent to 1950s born women made very clear that the information was “important information about your State Pension age” and clearly stated on the first page the date on which the recipient would reach State Pension age.
• The DWP had chosen to send “targeted, personalised” letters, for the very reason that they were likely to be more impactful than generic letters.  It is irrational for the DWP to now argue that limited impact of generic letters supports a conclusion that a personalised letter would have had no effect on what women knew about their own State Pension age.
• In any event, the 2014 survey does not undermine the PHSO’s finding on injustice, which was that 1950s-born women “lost the chance to receive, read and act on a letter earlier” and therefore “lost opportunities to make informed decisions”.  This injustice happened regardless of whether women would have remembered letters several weeks after receipt or whether individuals chose to read them in full or act upon them at the time they received them.
• Anyway, the 2014 survey results are not reliable as an indicator of the impact that letters sent in 2006 would have had, given the changes in society’s reliance on postal communications, the growth of the use of the internet and websites for providing information.
• The DWP is wrong to say that the PHSO did not take the 2014 research into account. The DWP provided the PHSO with the 2014 research and made arguments to the PHSO about it in its responses to the Stage 1 and Stage 2 draft reports.  The PHSO directly addressed the DWP’s arguments in her final Stage 2 and 3 report. The DWP was given a full opportunity to raise these issues during the PHSO’s investigation, it did so and the DWP’s arguments were taken into account by the PHSO.
• These flaws in the Government’s reasoning means that the DWP was wrong to reject the PHSO’s finding of injustice on this basis and also to rule out providing any remedy to affected women.

 What about the 2006 survey, then? What’s legally wrong with the Government relying on that?

We say that the 2006 survey does not provide a sound or rational evidential basis for the Government to reject the PHSO’s findings on maladministration and remedy because:

• The 2006 Survey simply asked participants whether the following two statements were “definitely or probably” true/false: “at the moment, women can receive the State Pension when they are 60” and “the age women can receive their State Pension is going to change in the future”.
• The survey does not provide any evidence concerning individuals’ knowledge of their own State Pension age.
• The PHSO recognised in his Stage 1 Report that although many women knew that State Pension age was changing, many did not appreciate that this would affect them personally; that the DWP itself recognised in 2007 that, although “some women do in fact have an awareness of the impending change, they do not understand how this relates specifically to them”; and that was the very reason DWP decided to send targeted individualised information to 1950s born women.
• That the DWP’s reference to it being “reasonable to expect” women to “take personal responsibility and check expert advice” is inconsistent with the DWP’s acceptance that the failure to send letters earlier amounted to maladministration.  That is because the conclusion that failing to send letters sooner amounted to maladministration was partly because the DWP recognised itself that general sources of information were inadequate and personalised letters were necessary.
• The 2006 survey itself was flawed, in that it prompted the participants to consider changing State Pension age and they may not otherwise have considered or recalled information about it; the questions asked in the survey were ‘leading’ questions; and the survey did not allow participants to answer “not sure” or “don’t know”. 

What does our lawyers’ letter ask the Government to do?

Our letter asks the Government to acknowledge that its decision to reject the Ombudsman’s findings is unlawful and to withdraw its decision.  If it does not, WASPI will issue judicial review proceedings in the High Court and ask a judge to decide whether the Government’s decision is lawful.

What happens next?

Our lawyers’ letter was sent on 23 February. The Government’s lawyers now have 14 days to respond, so we can expect to hear from them by no later than 10 March 2025. We will continue to keep you updated.

What happens if WASPI has to go to Court?

As with our last judicial review, the next step is to seek ‘permission’ for judicial review (the stage in the judicial review process in which a High Court Judge will decide whether we have an arguable case that has been brought promptly and within three months by a body with a proper interest in the outcome of the case i.e. WASPI). We need to cover the costs of our lawyers’ and any experts’ fees, court fees and the DWP legal costs that could be awarded against WASPI if permission is not granted when the judge considers our legal submissions and evidence either ‘on the papers’ or at a hearing. We also need to apply for a special order to limit legal costs.

If permission is granted, the case will proceed to a full hearing in a few months’ time. We are confident we have a good case to put to the court, but no one can ever be certain about the outcome of legal action. If we win, the Government will have to withdraw its decision to reject the Ombudsman’s finding on injustice and its decision not to compensate 1950s born women.  It will need to go away and think again and make a new, lawful decision about whether 1950s born women have suffered an injustice and how to provide a remedy for them. Succeeding in the judicial review does not mean that the Government would need to provide compensation, but it will require them to think again. They will no longer be able to rely on the central arguments to refuse compensation – the arguments based on the 2014 and 2006 surveys which WASPI believes are legally wrong. Succeeding in the judicial review is also important to vindicate the Ombudsman’s findings that the Government not only was guilty of maladministration but it caused injustice to millions of women. 

Most importantly, thank you

Finally, thank you to all of you have generously donated to our fighting fund so far.  We have made fantastic progress towards our target today.  Further donations will ensure we can take our case to Court to seek permission for judicial review.

With best wishes

The WASPI team, 

WASPI has been heartened this morning by the exceptional amount of press and online media interest in our judicial review challenge to the Secretary of State for Work and Pension’s remarkable decision that no WASPI woman has suffered any injustice as a result of DWP maladministration and so no compensation should be paid to any of us.

But we are even more heartened by the support we have already had in the form of donations via CrowdJustice to our fighting fund for the challenge. We have already met our initial £75,000 target.

That initial target is what we need to seek permission for judicial review (the first stage in the judicial review process in which a High Court Judge will decide whether we have an arguable case that has been brought promptly and within three months by a body with a proper interest in the outcome of the case i.e. WASPI). We need to cover the costs of our lawyers’ and any experts’ fees, court fees and the DWP legal costs that could be awarded against WASPI if permission is not granted when the judge considers our legal submissions and evidence either ‘on the papers’ or at a hearing. We also need to apply for a special order to limit legal costs.

We will say more about the judicial review process and what can be expected at each stage in future updates – and look out for the next one in which we will be publishing our letter before claim setting out our legal arguments in detail..

For now, thank you very much to everyone who has donated first thing today. By standing together, we will make sure this decision does not go unchallenged.