11 September 2018, by Emma Fitzsimons
In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48, 30 August 2018
Widowed parent’s allowance is a contributory social security benefit payable to men and women who are widowed with dependent children. It is non-means tested so it is particularly valuable to parents who are in work, although it is taxable. The widowed parent’s entitlement depends upon the contribution record of the deceased partner. Under the present law, only a widowed partner can only claim allowance if he/she is the spouse or civil partner of the deceased partner.
The issue for the Supreme Court was whether this requirement unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status contrary to Article 14 ECHR when read together with Article 8 ECHR and Article 1 of the First Protocol (A1P1).
The Appellant had lived with her partner, Mr Adams, for 23 years until his death on 28 January 2014. They were unmarried because Mr Adams had promised his first wife that he would never remarry. They had four children together, aged 19, 17, 13 and 11 years old at the time of their father’s death. Mr Adams made sufficient National Insurance contributions for the Appellant to be able to claim a bereavement payment and widowed parent’s allowance had she been married to him.
The Appellant’s claims for bereavement payment and widowed parent’s allowance were refused by the Northern Ireland Department for Communities. She applied for judicial review of that decision on the basis that the relevant legislation was incompatible with the ECHR. She succeeded in part before the High Court: a declaration of incompatibility was made under section 4(2) of the HRA 1998 that section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with Article 8 in conjunction with Article 14 “insofar as it restricts eligibility for Widowed Parent’s Allowance by reference to the marital status of the applicant and the deceased.” Her claim in relation to bereavement payment was dismissed. The Court of Appeal unanimously held that the legislation was not incompatible with Article 14, read either with Article 8 or A1P1: see  NICA 53.
Lady Hale, for the majority (4-1), structured the judgment as follows:
- Do the circumstances “fall within the ambit” of one or more of the Convention rights?
- Has there been a difference of treatment between two persons who are in an analogous situation?
- Is that difference of treatment on the ground of one of the characteristics listed or “other status?”
- Is there an objective justification for that difference in treatment?
Within the ambit?
Denial of a contributory social security benefit plainly falls within the protection of property in A1P1: see Willis v UK (2002) 35 EHRR 21, in relation to denial of widow’s payment and widowed mother’s allowance to widowers. Lady Hale concluded that the fact that a circumstance falls within the ambit of A1P1 is not a problem, and that there is no reason to regard respect for property as a lex specialis excluding cases of involving respect for family life. It can be within the ambit of both substantive rights.
Article 14 requires a difference in treatment between two persons in an analogous situation. Lady Hale emphasised that it is always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation.
In Shackell v United Kingdom (App 45851/99), the ECtHR ruled inadmissible a complaint that a denial of widow’s benefits to unmarried surviving partners was discriminatory, holding that marriage conferred a special status and was different from cohabitation. Here, however there were children affected and indeed would be the intended beneficiaries of the Widowed Parent’s Allowance.
Lady Hale considered the approach of the first instance judge in the High Court, and concluded that Treacy J correctly distinguished between entitlement to the bereavement payment and the widowed parent’s allowance. The lack of a public contract between the Appellant and her partner meant that her situation as not comparable to that of a widow and so her claim for the bereavement payment must fail. For the widowed parent’s allowance, the key characteristic was not public commitment of a couple, but the co-raising of children.
Both Strasbourg and domestic law recognise that not being married can be a status just as being married can be, see e.g. In Re G (Adoption: Unmarried Couple)  UKHL 38, in context of being unmarried as a bar to adoption.
The Appellant argued that the difference in treatment is based on the birth status of children, which is a suspect ground, requiring particularly careful scrutiny. The legitimate aim put forward by the Government is the promotion of institutions of marriage and civil partnership by conferring eligibility to claim only on the spouse or civil partner of the person who made the contributions.
Lady Hale recognised that “there is no doubt that the promotion of marriage, and now civil partnership, is a legitimate aim,” but there has to be a rational connection between the aim pursued and means employed. Here, Lady Hale found that the connection is “more debatable,” noting that it was doubtful in the extreme that any couple is prompted to marry by the prospect of bereavement benefits.
Lady Hale concluded that that the denial of the benefit here to the Appellant and her children was not a proportionate means of achieving the legitimate aim of privileging marriage.
The allowance exists because of the responsibilities between the deceased and the survivor towards their children. Its purpose is to diminish the financial loss caused to families with the children by the death of a parent; that loss is the same regardless of whether the parents are in a marriage or civil partnership.
In reaching that view, Lady Hale also drew upon the international human rights law on the rights of the child, in particular Articles 2 UNCHR (freedom from discrimination) Article 3 UNCRC (best interests of the child). Denying children the benefit of social insurance because their parents were not married is inconsistent with the Article 2 obligation. Lady Hale also had regard to the fact that the majority of member states of the Council of Europe provide survivor’s pensions directly to the children irrespective of birth status. This European consensus narrowed the width of the margin of appreciation afforded by the Strasbourg Court.
Accordingly, there was unjustified discrimination on the facts of the case to warrant a declaration that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with article 14 of the ECHR, read with article 8, insofar as it precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased.
However, Lady Hale held that it does not follow that the operation of the exclusion of all unmarried couples will always be incompatible. For example, the recent introduction into the household of a child for whom only the surviving spouse is responsible is one example. Whether denial of the benefit here would be proportionate would be fact specific.
Equally, the law does not require that the legislation must operate incompatibility in all cases: it is sufficient that it will inevitably operate incompatibility in a number of cases (see Christian Institute v Lord Advocate  UKSC 51).
The decision is a welcome development for the rights of bereaved children.
The full judgment is available here: Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48 – 30 August 2018