Why Waspis won't win legal claim for compensation, according to lawyers

Waspi women are unlikely to win a legal case against the Government over a lack of compensation, experts have said.

The Women Against State Pension Inequality (Waspi) campaign has written to the Government to tell ministers that they will be taken to the High Court if they do not think again on compensation payments.

Work and Pensions Secretary Liz Kendall and the Department for Work and Pensions have been given a 14-day deadline to back down – or the Waspi campaign’s lawyers will launch judicial review proceedings.

Waspi campaign chair Angela Madden accused Labour of “gaslighting” 50s-born women and said she was “confident” their case could be won in court.

But numerous lawyers told The i Paper they were doubtful the case would be successful.

The Waspi group’s lawyers at Bindmans LLP argue that the Government’s reasons for rejecting the Parliamentary and Health Service Ombudsman’s recommendation to compensate women are in breach of legal principles.

In a report released in March 2024, the watchdog found the Department for Work and Pensions (DWP) guilty of “maladministration” for failing to properly notify women of changes to their state pension age.

An estimated 3.6 million women who expected to get their state pension at 60 were forced to wait another five or six years due to increases in the qualifying age.

The current Government accepted there had been maladministration but dismissed calls for compensation in December.

Explaining the rationale for its decision in December, the Government claimed that 90 per cent of Waspi women knew about state pension age changes.

Waspi campaign chair Angela Madden said the reasons given are “unlawful” and that the survey referred to by the Government was misused.

The campaigners say that only around 200 women born in the 50s were asked the questions from a total sample size of 1,950 individuals.

Qarrar Somji, director of Witan Solicitors, said “securing enough funds to cover legal fees will be a major hurdle” for the Waspi women, adding that the complexity of the case meant costs “could easily surpass the initial £75,000 estimate”.

“Judicial review sets a high bar to meet,” he said.

“To succeed in a judicial review, the campaigners will need to prove that the government’s decision was unreasonable.

“However, even with the Government’s admission of maladministration and an apology for delays, a judge will likely weigh the financial burden on taxpayers more heavily than the 28-month delay – reducing the chances of a favourable outcome.

“After all, the Government estimates that compensation could reach £10.5bn, putting extra pressure on many taxpayers already struggling.”

Jonathan Compton, partner at law firm DMH Stallard, said: “I think the courts will be reluctant to intervene when such major sums are at stake.”

Jo Mackie, partner and employment law specialist at Burlingtons, said the Government’s 90 per cent claim “will be a difficult point to argue” because “it is subjective and open to interpretation”.

Tom Selby, pensions expert and director of public policy at AJ Bell, said the Government is not legally obliged to implement the ombudsman’s recommendations to pay compensation.

“People are of course perfectly entitled to challenge these things through the legal process, but it is extremely unlikely this will result in a change of policy,” he said.

“That power continues to reside with the Government and it has been very clear that it does not believe handing out £10bn+ in compensation is a fair use of public resources.”

Alex Watt, partner at law firm Howard Kennedy, said both sides accept that the Government has “wide discretion to decide what will be paid out to whom and when” by raising the state pension age, which will make bringing a successful judicial review harder.

He said: “The Parliamentary and Health Service Ombudsman did recommend that the Government provide some compensation to women affected by the age changes.

“But ultimately, even if the process by which they reached a decision was wrong, if they could ‘reasonably’ still have reached that decision (on a Wednesbury basis) and there are strong policy reasons for doing so (as there are), courts are unlikely ultimately to mandate that the Government cannot operate in that way.”