Girl wins dead father pension fight

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LONDON, UK - 30TH OCTOBER 2011: Two Police officers overseeing the Occupy London protest camp outside St. Paul's Cathedral in Lo

The toddler daughter of two unmarried police officers whose father died before she was born has won her legal battle for a share of his pension.

Tabitha Oxer-Patey was born in November 2010 - five months after Richard Oxer died after falling down a flight of stairs on a work night out with friends.

Mr Oxer, 31, of Nash Close, Sutton, who had been with the Metropolitan Police for six years, was in a relationship with another officer, Theresa Patey.

The High Court in London heard that the Police Pensions Regulations 1987 provide for pensions to be paid to the children of officers who die while in service but, by a quirk of drafting, they discriminate between legitimate and illegitimate children, though oddly only in relation to children born after the death of the officer.

Children born before the death of the officer are entitled to a pension whether they are legitimate or illegitimate, said counsel Ben Cooper.

In what is believed to be an unprecedented case, he told Mr Justice Supperstone that such discrimination was contrary to the European Convention on Human Rights and that, since the regulations were secondary legislation for the purposes of the Human Rights Act, the provision excluding Tabitha's entitlement must be disregarded.

The issue was whether the discrimination could be justified on the basis that it encouraged marriage or the provision of stable parental relationships when bringing up children.

Mr Cooper said the aim of promoting marriage could not apply in respect of discrimination against a child born out of wedlock because the child bore no responsibility for the status of its parents' relationship.

It was not a legitimate aim to penalise the child for the decisions of its parents.

The Metropolitan Police did not concede the case as it said it had no discretion to over-ride the regulations but took a neutral stance and did not actively oppose it.

Today, the judge said the discrimination could not be justified on objective and reasonable grounds and made a declaration that Tabitha was entitled to an allowance and had been since her birth.

The police will also pay Ms Patey's legal costs of £16,494.

Simon Cuthbert, employment lawyer at Slater & Gordon, said: "We have represented Theresa and her daughter Tabitha and are pleased to have helped them to resolve this case.

"It's a very small point of law that meant that because Tabitha was still in her mother's womb and hadn't actually been born when her father tragically died, she wasn't entitled to anything. If her mother and father had been married, things would have been different but because they weren't she wasn't entitled to anything.

"This seems grossly unfair and although a small point of law which will probably affect very few people, it could have had a large impact on the future financial security of our client.

"The importance of the case beyond Tabitha and Theresa is that it just illustrates the importance of the European Convention on Human Rights and the Human Rights Act for righting arbitrary, discriminatory and unfair distinctions in terms of people's legal entitlements and for enforcing individuals' rights, rather than the specific principle in terms of the police pension regulations."