Bereavement and children: unequal no more?

 

Carla Clarke looks at a recent Supreme Court decision regarding bereavement benefits and the children of unmarried parents.

One area of the law where a difference in treatment between children of married parents and unmarried parents has persisted is that of bereavement benefits. As recently as 2014, parliament legislated for the new bereavement support payment (which includes a higher rate for those with children) to only be available to those who had been married to, or in a civil partnership with, their deceased partner.

Against this backdrop, the recent decision of the Supreme Court in McLaughlin, Re Judicial Review (Northern Ireland) [2018] UKSC 48 (30 August 2018) (‘McLaughlin’)1

Ms McLaughlin had lived with her late partner for 23 years prior to his death in 2014 and together they had had four children. Ms McLaughlin would have qualified for bereavement payment and WPA but for the requirement under sections 36 and 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 that it was her ‘spouse’ who had died. The provisions under the Northern Irish legislation mirror those under the Social Security Contributions and Benefits Act 1992. ‘Spouse’ is used for brevity here to cover ‘civil partner’ as well and ‘marriage’ to also cover those who have entered into a civil partnership. She challenged the refusal by the Northern Ireland Department of Communities to pay her bereavement benefits by way of judicial review in the High Court of Northern Ireland arguing that the requirement to have been married discriminated against her on the grounds of marital status in breach of Article 14 of the European Convention on Human Rights, taken together with Article 8 (right to family and private life) and/or Article 1, Protocol 1 (peaceful enjoyment of possessions).

Before the High Court, the challenge to bereavement payment was unsuccessful while the challenge to WPA succeeded. The Northern Ireland government successfully appealed the WPA aspect to the Court of Appeal. In a four-to-one majority, the Supreme Court overturned the Court of Appeal decision, finding that the requirement for the widowed parent to only be eligible for WPA if s/he was married to her/his deceased partner unjustifiably discriminates against the survivor and/ or the children on the basis of their marital or birth status. At the same time, the Supreme Court expressly endorsed the High Court’s approach to bereavement payment.

Why is this and how does the Supreme Court decision fit in with the earlier European Court of Human Rights (ECtHR) case of Shackell v UK (2000), which involved an identical challenge by an unmarried widow and failed? In essence marriage, as opposed to ‘mere’ cohabitation, may form the basis of beneficial treatment in certain situations: a couple who have married rather than simply cohabiting have entered into a public contract and they are entitled to be treated differently (advantageously) due to that fact. One such way is through entitlement to bereavement payment.

However, where WPA is concerned, its purpose is to benefit the children, and so the position of the children is what is really being compared rather than that of the parents – and their position is the same whether or not their parents were married. Any difference in treatment between them therefore needs to be justified, and the Supreme Court was very clear that there was no such justification: ‘a policy in favour of marriage or civil partnership may constitute justification for differential treatment when children are not involved. But it cannot do so in relation to a benefit targeted at the needs and well-being of children.’ (paragraph 52).

This preparedness to look at the underlying purpose of the benefit as opposed simply to whom it is paid is important given that child-related benefits, other than disability living allowance, are never paid directly to the child in the UK. Also of relevance in this regard, was the court’s preparedness to draw on international human rights material, referred to it by CPAG who intervened at the Supreme Court stage and, in particular, Article 26 of the UN Convention on the Rights of the Child which requires states ‘to recognise for every child the right to benefit from social security’.

In reaching its conclusion, the Supreme Court held that, as far as WPA was concerned, Shackell was wrongly decided and should not be followed given the failure by the ECtHR to consider the purpose of the benefit as opposed to simply considering the eligibility conditions.

The Supreme Court was limited to making a declaration of incompatibility under the Human Rights Act (HRA). As such, the marriage requirement under the Northern Ireland legislation, as well as the equivalent legislation in Great Britain, still stands and will continue to do so until amending legislation is passed by parliament.2 The situation in Northern Ireland, given the suspension of the Stormont Assembly, is a moot point.

It should also be noted that for those parents whose partners died on or after 6 April 2017, and so who cannot claim WPA in any event but rather the higher rate of bereavement support payment, the Supreme Court ruling does not directly apply to them. Indeed, the Supreme Court expressly stated that its decision did not mean that the new law was incompatible with the HRA (paragraph 44).

For those cohabitees with children whose partner died before 6 April 2017 and who have not put in a claim for WPA because of the marriage requirement, a claim could be made now. In the inevitable event that it is rejected, the next step would be making an application to the ECtHR which the government would look to settle.

It is however difficult, so soon after the Supreme Court ruling, to say with any confidence whether anything is to be gained by putting in such a claim at this point. Claimants may decide to wait, and consider putting in a claim further down the line if it becomes apparent that the government is looking to delay bringing forward changes to the eligibility criteria or to apply changes only prospectively.

For those cohabitees with children whose partner died on or after 6 April 2017, it will have to be seen whether the government is prepared to voluntarily introduce amending legislation which brings the eligibility conditions for the higher rate into line with WPA. In the meantime, and to assist the government in its deliberations, CPAG is considering bringing a legal challenge. In a separate challenge, CPAG has a judicial review pending in the case of a woman denied WPA who considered herself legally married in a religious ceremony, although the marriage was not legally recognised.

 

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