BMA’s judicial review of the UK government set to begin

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Last year HM Treasury issued directions to address the age discrimination associated with the introduction of reformed public service pension schemes in 2015. In 2018 the granting of transitional protection from the changes to those nearing retirement had been found unlawful in the McCloud and Sargeant litigation brought by judges and firefighters.

Under the 2021 directions the costs burden associated with remedying the government’s unlawful discrimination (“the McCloud Remedy”) shifts in its entirety to public service workers, including doctors within the NHS pension scheme.

The BMA has mounted a judicial review on the basis that the directions:

  • are contrary to the government’s own guidance and policies relating to the valuation of the pension schemes and the operation of the cost control mechanism;
  • involved an unlawful failure to consult adequately on the directions and obtain and take into account relevant information impacting on its decision to burden scheme members with the costs of the McCloud Remedy; and
  • are flawed as a result of a failure to investigate and meaningfully assess the impact on scheme members with protected characteristics and so in breach of the public sector equality duty.

Simon Ramsden and Samantha Orenstein, from Capital Law’s Public Law & Regulatory team, are working with Fenella Morris KC and Jennifer Thelen from 39 Essex Chambers to represent the BMA.

The case has wider implications for the funding and valuation of public service pension schemes and retirement benefits with billions of pounds at stake for public sector workers, employers and taxpayers.

The BMA’s challenge will be heard by the High Court alongside a related claim brought by the Fire Brigades Union and supported by many other trade unions including the GMB, PCS, Unite, the Prison Officers and Police Superintendents Associations and the Royal College of Nursing.

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