Widowed parent’s allowance: Supreme Court win for survivor of unmarried couple
In a case heard on 30 August, the UK Supreme Court has found that in refusing widowed parent’s allowance (WPA) to a survivor of an unmarried couple on the grounds that she was not married to her late partner, the legislation was incompatible with the European Convention on Human Rights (ECHR).
The facts of this case were that Siobhan McLaughlin lived with her partner John Adams for 23 years. The couple had four children but never married. Mr Adams died on 28 January 2014 and Ms McLaughlin applied for bereavement payment and WPA on the strength of his National Insurance contributions. Her application was refused on the grounds that the couple were not married to each other; in order to receive bereavement benefits on the strength of the deceased’s contributions, the legislation requires the survivor to have been married to, or in a civil partnership with, the deceased.
Ms McLaughlin appealed to the High Court which declared the legislation incompatible with the European Convention on Human Rights (ECHR) “in so far as it restricts eligibility for widowed parent’s allowance by reference to the marital status of the applicant and the deceased”. That decision was reversed by the Northern Ireland Court of Appeal, but restored by the UK Supreme Court.
Interestingly, Ms McLaughlin’s appeal against refusal of bereavement payment was not upheld by the High Court and was not examined by the Supreme Court, unlike her entitlement to WPA. While bereavement payment was for the survivor, the purpose of WPA was to benefit the children for whom the deceased parent and the survivor were jointly responsible. The Supreme Court said that whilst the promotion of marriage or civil partnership could be a legitimate aim for a policy, as argued by the Government, it was manifestly not a proportionate means of achieving it to deny support to the children on the grounds that their parents were not married. The High Court considered that there was no such bar to limiting bereavement payments to those who had been married or in civil partnerships.
The human rights law
The key parts of the ECHR used in reaching this decision were Article 14 (prevention of discrimination) and Article 8 (respect for private and family life). Article 14 is worth setting out in full:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 14 cannot stand alone; it can only be used alongside other rights and freedoms set out in the ECHR. Hence the combination of Article 14 with Article 8 requiring respect for family life – the government shows its respect for family life by paying WPA, but discriminates unlawfully against unmarried couples by refusing it to them when they are in an analogous situation with married couples (ie both are responsible for children).
This decision, welcome though it undoubtedly is to the many survivors of unmarried couples bringing up their children without the support either of their deceased partner or the state, does not mean that the UK government must now automatically pay up. First, it is only a declaration of incompatibility: the judges have power under the Human Rights Act 1998 to declare a piece of legislation incompatible with the ECHR, but cannot change it – only Parliament can do that. Secondly, the decision only applies to WPA which is payable where the deceased partner died before 6 April 2017; for deaths on and after that date, bereavement support payment (BSP) is payable instead, and it does not follow that the arguments that won the day in McLaughlin will apply also to BSP. Thirdly, the decision as it stands applies to the separate Northern Ireland legislation – but the equivalent legislation in Great Britain is identically worded and there appears to be no reason why the same considerations would not apply throughout the UK.
We do not yet know how the UK government will react – whether it will implement the McLaughlin decision in respect of remaining payments of WPA, or backdate it to cover earlier payments and if so how far; whether it will implement it also for BSP; or whether it will simply not act. The Childhood Bereavement Network and Child Poverty Action Group are pressing the Government not to delay but to carry through the Court’s decision. We encourage bereaved parents in this situation to keep an eye on the website of the Childhood Bereavement Network for further advice.
LITRG report on couples
In Couples in the tax and welfare systems: a call for clarity (May 2015), LITRG reported on the inconsistent treatment of couples for tax and social security purposes, and made various recommendations for reform. On bereavement benefits we said (at p. 66):
“There is a blatant unfairness in the non-availability of bereavement support for unmarried or non-civil partner couples on the death of their partner. The restriction of the existing and proposed replacement benefit [now BSP] to married couples and civil partners seems to be formed on no immediately identifiable logic – particularly when we consider couples with dependent children (the children having no control over the decision of those who care for them to marry or not). This could be easily rectified by extending the benefit to those who lose a de facto spouse.”
It is somewhat gratifying that our reasoning, in particular our comparing the situations of married and unmarried couples with dependent children, tallies with the judgment now given by the Supreme Court.
We also were privileged to offer support to the Childhood Bereavement Network in its submission of evidence and legal arguments to the Court in the McLaughlin proceedings.