Blog by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Law Team.
Due to severe disabilities, the appellant’s wife, Mrs O’Donnell, had never been able to work. She had been diagnosed with Friedreich’s Ataxia, a rare inherited degenerative disorder. It had caused a steady decline in her condition over the years. On 31 July 2017, Mrs O’Donnell died leaving the appellant to bring up their four children. When the appellant made a claim for Bereavement Support Payment (BSP) it was refused on the basis that Mrs O'Donnell had not paid any Class 1 or Class 2 national insurance (NI) contributions as required by sections 29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 (the 2015 Act). The appellant, argued that the failure to create an exemption to the contribution rule amounted to Thlimmenos discrimination.
The Court of Appeal of Northern Ireland agreed that the 2015 Act failed to treat differently persons whose situations were significantly different, and that there had been discrimination in the appellant’s case. Mr O’Donnell was entitled to rely on his status as the spouse of a deceased who was severely disabled so that she was unable to work as were the children: Guberina v Croatia (2018) 66 EHRR 11, which held that indirect associative statuses were within Article 14, applied. The Court rejected the reasons given by the Secretary of State to justify the difference in treatment. The Court said it was manifestly unreasonable to suggest that a severely disabled person could be incentivised to work if their disability prevented it. The Court also said that creating an exception for such persons did not undermine the contributory principle and that the severity of the measure was disproportionate to its likely benefits. The Court therefore concluded that in order to make the section 29(1)(d) of the 2015 Act compatible with the ECHR it should be read to treat the contribution condition as being met if the deceased was unable to comply with section 30(1) throughout their working life due to disability.
The provisions in sections 29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 are almost identical to sections 30- 31(1)-(3) of the Pensions Act 2014 which applies to England and Wales and to Scotland. In SSWP v Deane  EWCA Civ 699, Ward LJ concluded that the Court of Appeal was not obliged to follow decisions of the Northern Ireland Court of Appeal, but it “must accord them the greatest respect” especially where the decision relates to a statutory requirement which is the same as that which applies in England and Wales