Iain Cockburn spent months caring for his wife before she lost her fight with cancer at the age of 48. But now he is facing a new battle against her employers over the NHS pension the medic paid into for 24 years.
Mr Cockburn, a former Royal Marine, has launched a landmark court case which could cost the Department of Health almost £1 billion in extra pension payments with wider implications for the Treasury regarding public sector pensions.
His wife, Dr Clare Boothroyd died in February 2007. But Mr Cockburn, 56, from Leamington Spa, Warwickshire, receives £3,200 per year less than a woman would in the same circumstances.
His case is being sponsored by the British Medical Association whose legal team argue the case amounts to unlawful discrimination for which there is no reasonable justification.
In an exclusive interview with the Birmingham Post, Mr Cockburn said: “This is purely and utterly sexual discrimination. If on the same day Clare died, a male doctor had died with the same amount of service that she had, having qualified in 1982 without any career breaks, his widow would be collecting £3,000 a year plus pension more than me.
“And this is an NHS pension scheme, so it’s all female employees, not just doctors. It affects nurses, physiotherapists.
“It is any male survivor of a female NHS employee who has been paying into the pension scheme for a reasonable length of time and this could have massive implications.”
The Department of Health admits Mr Cockburn’s pension is less than if he was a widow due to the difference in the way it is calculated.
When widowers’ pensions are calculated, contributions made by deceased female partners before April 6, 1988, are discounted, reducing their entitlement. Widows’ pensions are based on the full contributions made by their male partners.
The Department of Health argues that the difference between the widows’ and widowers’ schemes is “objectively and reasonably justified”.
The more generous provision for widows was justified because of the disadvantaged economic position women held due to child care responsibilities and their historically lower earning potential.
It is now pointing to the potential cost of putting the scheme right retrospectively in its defence in the case.
Mr Cockburn said it was wrong that contributions made by his wife, who worked at Waterside Medical Centre in Leamington Spa, were being treated differently to her male colleague’s payments.
“The contributions Clare made to her pension were the same as her male colleagues,” he said.
“If the pension I should be getting is money that Clare had already earned and I am not getting it, who is? Where is that odd £3,000 a year going? She earned it, not another doctor.”
Mr Cockburn, who married Clare in 1992 after a two year relationship, gave up his job in IT and became her full-time carer when she was diagnosed with a malignant melanoma, four years after overcoming breast cancer.
“It was aggressive and it was a secondary cancer,” he said. “She had previously had breast cancer but this was a malignant melanoma but not one that you or I would recognise. This was a tumour way up inside her right nostril, internally. Melanomas are skin cancers but this was inside the nose, almost as level with her eye.
“In the space of a weekend she went from being fine to having a fairly large swelling on the side of her nose and a fairly constant nose bleed. That was start of the second cancer.
“The situation developed over the weekend. On the Monday, she made a phone call, she saw a consultant on the Tuesday morning and they had done the first operation by the end of the week.
“Clare had surgery on her face and chemotherapy, she was treated at the old Queen Elizabeth Hospital in Birmingham, but the cancer spread below the neck. We were told, ‘it’s terminal – if you have anything planned, do it now’.
“At the time I flipped into what is called ‘carer mode.’ I had to do what I had to do. I gave up work to look after her and we did all the things she wanted to do.
"We put together a ‘bucket list.’ Clare learnt to ride a motorbike and we bought her one which she got to ride three times and I still have her bike.
“We nearly travelled the world. We had a trip planned and got to India but we were there for a week before we had to come home.
"In the space of that week Clare went from being a normal size 12 to 14 slim female to looking like she was six months pregnant, the tumour grew so big. She said ‘get me home’ so we did.”
Clare’s condition worsened and she died three weeks later just a few days after requesting to go into a hospice. She did whatever she could to help her grieving husband through the worst.
“When someone gives somebody that intelligent six or nine months to live, you would be amazed at how many things they put in place before they go,” he said.
“She left so much from videos to pictures. She had it all sorted. For the first two months after she went, people delivered me meals. What happens a lot of time is that after the funeral, at some point you come back to an empty house full of memories but also a great big void which looks at you like a black hole and that’s where people can’t cope. In as much as she could, she tried to protect me.
“There are lots of memories which I am reliving now with the court case. But one side of my brain says, ‘This is a side show. It’s not for me personally a life-saving difference. This is just getting the system right so that people far into the future are treated absolutely equally. It’s those many people behind me’.”
It was during the period of sorting out his wife’s will when the BMA put out a memo looking for a test case.
The organisation informed medical committees they were planning to bring a case against the NHS and asked for a candidate to step forward. Mr Cockburn agreed.
“They wanted someone who was prepared to have his name in the press, stick his head above the parapet, so I said yes. This process started back in 2008. The case was put in the system and then we waited for a hearing. But it’s a scary thing when you get the paperwork and the name of the claimant is me versus the Secretary of State for Health. It is daunting. But this is not just about me, it’s about anyone in my situation.
“Going back historically, had Clare still been alive, given that she was a doctor she would probably have been involved in fighting against this discrepancy anyway, because she was fairly strong minded and would not have been happy with the situation. So I feel as though I am fighting for this on her behalf,
“What it does though is bring back memories. Whatever you say or do, the fact is the only reason I am getting the pension and I am sat in the High Court surrounded by lawyers is because my wife passed away. So it’s bringing it all back.
“But Clare and I had some great times together like climbing Mount Kilimanjaro on her 40th birthday and I am grateful for that. You don’t know how long you have.”
Time, new found faith and counselling has helped Mr Cockburn to deal with Clare’s death and he has re-married, which he says was also influenced by his late wife.
“One of the things that happened because of Clare and her illness is that I became a Christian. Clare already was. If you have lived with someone dying of cancer and Clare was something amazing, you become a Christian and I married someone from the church who knew both of us. Clare told me before she died ‘you are not old enough to spend the rest of your life alone’.”
Despite finding happiness with new wife Michelle, Iain remains passionate about fighting for his late wife’s wishes as the wait continues to see what the court will decide.
Lawyers for the Secretary of State for Health accept that it is discrimination, but argue it is defensible.
The landmark case has major implications for all public sector pensions, with the Government claiming that if the BMA position is upheld it will mean the Treasury potentially having to find a further £4 billion.
The BMA, which has been tirelessly campaigning for years against salary discrimination within the NHS – arguing that a pension is deferred pay – was given permission for a High Court judicial review of widowers’ pensions last October.
Alex Fox, the partner heading up the Litigation Group at law firm Manches and also represents the BMA, said: “It is important for organisations such as the BMA to ensure that unlawful discrimination within the work place is stamped out”.
The BMA is relying upon European human rights protection to underpin its argument that the inequality needs urgent address.
Jonathan Waters, director of Legal Services at the BMA, said: “This is a highly significant test case and we await the court’s decision with great interest”.
The judgement has been reserved until a later date.
The Department of Health said it was not able to comment while the case is still in the courts.