Bereavement benefits and discrimination
Supporting clients who are bereaved following the death of a cohabiting partner. The advice in this article applies to England, Wales and Northern Ireland.
This article was first published in January 2020 and was updated on 25 August 2021.
It’s a difficult scenario that many advisers will recognise. A client arrives at a local office asking for help. The adviser explores the circumstances and discovers that the client’s partner recently died suddenly. Without her income, the client is struggling to provide for his family. The adviser asks whether the couple were married but they were not. The adviser checks AdviserNet and sees there is no entitlement to bereavement benefits because the couple weren’t married. The adviser breaks the bad news.
As well as having often considerable emotional implications, the death of a spouse or civil partner has a large impact on the finances of the surviving partner in virtually all cases.¹ This article gives a brief history of bereavement benefits, explains the continual exclusion of unmarried survivors and gives tactical advice to help advisers support bereaved clients who were cohabiting with their partner.
An introduction to bereavement benefits
Bereavement benefits are designed to support people of working age following the death of their spouse or civil partner. They were first introduced in the UK as a widow’s pension in 1925² with only women being eligible. This was based on the assumption that the husband was the breadwinner for the family, an assumption that began to sit uncomfortably with societal changes as greater numbers of women entered the workplace. The exclusion of men was also criticised and cases were taken to the European Court of Human Rights in the 1990s.³ The Labour government created a new benefit and from April 2001⁴ Widowed Parent’s Allowance (WPA) was introduced. Available to a parent spouse or civil partner of a deceased person who met the contribution conditions, it was the primary bereavement benefit until the introduction of Bereavement Support Payment (BSP) in 2017.⁵
BSP replaced WPA on 6 April 2017 for claimants whose spouse or civil partner died on or after that date. Unlike WPA, BSP does not cease if the claimant remarries or starts cohabiting with another partner, and is also payable (at a lower rate) if the survivor is not responsible for children. However, whereas WPA can be paid until the surviving spouse is no longer entitled to child benefit — potentially two decades — BSP is payable for a maximum of 18 months.
The exclusion of unmarried survivors
A common theme throughout the history of bereavement benefits in the UK has been the exclusion of unmarried survivors, or “cohabitees”. Cohabiting means living together as if married. The WPA rules require the survivor to have been married to, or in a civil partnership with, the deceased. When BSP was introduced to Parliament described as a modern benefit appropriate to 21st century society, some campaigners hoped cohabitees would become eligible, but the government decided not to change the rule. BSP was introduced in the Pensions Act 2014. Section 30(1) provides that:
“A person is entitled to a benefit called bereavement support payment if —
(a) the person’s spouse or civil partner dies”
Supreme Court declares WPA incompatible with human rights law
The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK domestic law. The ECHR is an international treaty which protects the human rights of people in countries that belong to the Council of Europe. The UK ratified the Convention in 1951.
However, under the UK constitution, Convention rights couldn’t be enforced by UK courts. Claimants had to bring a case to the European Court of Human Rights (ECtHR), which took time. The Labour government therefore introduced the Human Rights Act 1998 (“HRA”) to “bring rights home”⁷ and weave the Convention rights into the jurisprudence of British courts.
The HRA was a landmark constitutional statute. One consequence is that higher UK courts have the power to declare an Act of Parliament (also known as “primary legislation”) incompatible with a Convention right by issuing a “declaration of incompatibility”.⁸ This does not give any remedy to those affected, because the HRA recognises the principle of parliamentary sovereignty: courts must give effect to the will of Parliament as expressed in primary legislation. The incompatible legislation remains on the statute book and continues to apply, but a declaration of incompatibility is important because, in the words of the 1997 White Paper “it will almost certainly prompt the Government and Parliament to change the law”.
In August 2018 the Supreme Court handed down its judgment in McLaughlin that the primary legislation governing WPA in Northern Ireland (which is identical to the English law) breached the Convention rights of the children of unmarried survivors on discrimination grounds under article 14 of the Convention.
Giving the leading judgment, Lady Hale outlined the four-stage test raised by an article 14 complaint. Because article 14 is not a free-standing right and must be argued in combination with a substantive right from the Convention, Ms McLaughlin had to show that discrimination affected her enjoyment of one or more of the substantive rights.
(1) Do the circumstances fall within the ambit of a substantive Convention right?
Article 1 of the First Protocol of the Convention (“A1P1”) protects property rights and article 8 protects the right to family life. These are substantive rights. Strasbourg jurisprudence has confirmed that providing benefits is one of the ways a state enables citizens to exercise the right to family life.⁹ Therefore, Lady Hale had no difficulty holding that the denial of WPA fell within the ambit of these substantive Convention rights.
(2) Has there been a difference in treatment between two persons in an analogous situation?
Lady Hale said that comparability must be looked at in the context of the measure in question and its purpose. Because WPA is only paid because the survivor is responsible for the care of children, its purpose must be to benefit the children. Their situation is the same whether or not the couple were married; it makes no difference to the children. Therefore Ms McLaughlin was in an analogous situation to a married survivor because the needs of her children were the same. This finding required the majority to disapprove the reasoning of the ECtHR in Shackell v United Kingdom¹⁰, discussed in more detail below.
(3) Is the difference of treatment on the ground of a protected characteristic?
Lady Hale noted that not being married can be a status, just as being married can be. The House of Lords held in Re G (Adoption: Unmarried Couple) [2008] UKHL 38 that being unmarried was a status for the purpose of an article 14 challenge.
(4) Is there an objective justification for that difference in treatment?
With the first 3 questions answered in the affirmative, the Secretary of State had to show that the exclusion of Ms McLaughlin from benefit was justified. This involves the court considering whether there is a legitimate aim and whether the means used to achieve that aim are proportionate. Lady Hale held that the promotion of marriage is a legitimate aim, but that excluding Ms McLaughlin from entitlement to WPA was disproportionate:
“The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another. The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same whether or not the parents are married to or in a civil partnership with one another.”
Finally, Lady Hale cited article 3 of the United Nations Convention on the Rights of the Child (UNCRC), which states that the best interests of the child “shall be a primary consideration”. This was significant, because the UNCRC has not been directly incorporated into UK law. Moreover, it is now likely to be invoked in future cases involving social security benefits if the denial affects children. However Lord Hodge, dissenting, found that the primary benefit of WPA was to the surviving parent and not the children. Lady Hale’s reliance on the UNCRC required the finding that WPA serves to benefit the children. This distinction — whether a particular non-means-tested benefit exists to benefit the children or the surviving parent — seems to be fundamental in determining whether an argument based on the UNCRC is to succeed.
The Court issued a declaration of incompatibility. It should be noted that the decision doesn’t mean that WPA will always be discriminatory against unmarried survivors, even if they are responsible for children. This is because there are many different scenarios in which a surviving parent could become eligible for WPA so it may not be discriminatory to exclude them. Lady Hale said at para 43:
“Whether it would be disproportionate to deny that child the benefit of the deceased’s contributions would be a fact specific question.”
The relevance of McLaughlin to Bereavement Support Payment (BSP)
Lady Hale said that “It also does not follow that the new law [BSP] is incompatible.” Judicial review against the BSP legislation has now been granted in another case, on the grounds that it is similarly discriminatory.¹¹ In this test case, Child Poverty Action Group (CPAG) are representing 2 families where the mother has passed away, leaving the fathers caring for their young children. CPAG argues that the requirement for marriage or civil partnership is incompatible with the HRA, because the fact that a higher rate is payable to survivors with children means that the purpose is to provide for the needs of the children. In other words, the BSP legislation is, like WPA, discriminatory against the children of unmarried survivors. As mentioned above, Lady Hale referred to the UNCRC in McLaughlin. If this becomes a judicial trend, it is more likely that discrimination against children will be found to be disproportionate when the court answers question 4 of the article 14 test: whether there is an objective justification for the difference in treatment. If the legislation in question is disproportionate, it will be unjustified discrimination.
The Secretary of State is arguing that McLaughlin cannot be taken to apply to BSP on the basis that the benefit is not designed to benefit the children, but is instead designed to cover the additional costs incurred by the surviving parent. The Secretary of State’s argument is likely to draw on Lord Hodge’s dissenting judgment in McLaughlin on the true purpose of the benefit.
UPDATE (05/08/2020): On 7 February 2020, the High Court handed down judgment, holding that the BSP legislation was incompatible with the ECHR because it discriminated against cohabiting partners with children.
On 28 July 2020, Employment Minister Mims Davies confirmed in a written answer that the government will issue a Remedial Order to extend WPA and BSP entitlement to cohabitees with children. The Order will be laid before the house in ‘due course’.
On 15 July 2021, the DWP laid the draft remedial order to address the issues with both WPA and BSP in England & Wales, as well as Northern Ireland.
While this RO is not yet in place, the law remains unchanged and claims are not being granted. We have been made aware of phone calls to claimants advising them of developments and that outcomes are not currently available to them. We are also aware that advisers have expressed concerns that clients may not seek advice again once the RO is passed, and therefore miss out.
An interim decision has been given on one of these cases, CG/1616/2019, with original grounds provided by Merton and Lambeth Citizens Advice.
Judge Rowland considers this current state of limbo in paragraph 7 and makes a consideration as to what can be done:
‘As a general proposition, there is much to be said for the point made by the Advice Bureau to the effect that, when determining an appeal against a claimant on the basis of legislation that has been the subject of a declaration of incompatibility, a tribunal needs to ensure that it does not do so in a way that might prevent the claimant from taking full advantage of a remedial order or other legislation designed to remove the incompatibility. As suggested in NA v Secretary of State for Work and Pensions (BB), that may, in practice, require a tribunal to deal with the issues before it as a preliminary point and then to consider postponing giving a final decision on the appeal until the incompatibility is removed, perhaps making additional findings of fact that might then become relevant.[…]’
Therefore our advice is still to claim and then mandatory reconsideration and then appeal in order to protect a client’s rights should the RO change, or that the RO delay may cause a claimant to miss the advantage.
Regarding this interim decision, Judge Wright stated that the Upper Tribunal should not finally determine it until the remedial order has been made. This is despite the fact that this particular claimant doesn’t benefit from the current RO. The postponement is being made just in case material changes are made to the draft that mean they would benefit.
This would be an important case to cite when asking tribunals to postpone decisions while we await the final decision on the RO.
A summary of CG/1616/2019 is available on Rightsnet.
Advising unmarried survivors
Widowed Parent’s Allowance
If an unmarried survivor was cohabiting with their partner before bereavement, satisfies all of the other conditions of entitlement and is responsible for children in a similar way to Ms McLaughlin, they should make a claim for WPA and ask DWP to delay making a decision on their claim pending the government’s review of the law in light of McLaughlin. If the claim is refused, there is the option of challenging this decision as discriminatory against the children, applying McLaughlin. There is no time limit for WPA claims. When the claim is refused, they can request a mandatory reconsideration and then appeal to the First-tier Tribunal, asking for a declaration that human rights have been breached. Further advice should be sought at this stage.
Bereavement Support Payment
Firstly, it is important to note that neither McLaughlin nor the CPAG test case are likely to affect unmarried survivors who do not have responsibility for children. Claimants would need to have children in order to be able to rely on McLaughlin or the test case.
Unmarried survivors should be advised to make a claim for BSP. There are strict time limits for backdating a claim. BSP is automatically backdated to the date of the death if a claim is made within 3 months of the death. If a claim is made more than 3 months after the death, the claim is automatically backdated for only 3 months, so some entitlement can be lost if there is a delay.
This claim will be refused by DWP. The client should request a mandatory reconsideration (which will also inevitably be refused) and then appeal to the First Tier Tribunal (FTT), alleging breach of the children’s rights under article 14 read with article 8 of the Convention. The client should ask that the FTT make a decision that the human rights of the children have been breached.
Conclusion
This aspect of benefits law requires advisers to manage expectations of clients at an extremely challenging time. Advisers should explain that any legal challenge is likely to take a long time and many clients will decide not to pursue the matter. This is, of course, understandable if regrettable.
It will be a great disappointment for unmarried survivors who did not have children to find that there is no realistic prospect of success. Unfortunately, the case law doesn’t provide solace and advisers should help the client understand their entitlement to other benefits after bereavement, such as Universal Credit and possibly a Funeral Expenses Payment.
Citizens Advice advisers may contact the Expert Advice team for help with appeal submissions.
Lawrence Barratt is a Paralegal in the Expert Advice Team at Citizens Advice, with thanks to Fiona Seymour and Rachel Ingleby.
References
[1] Bereavement benefits: Findings from qualitative research, Department for Work and Pensions
[2] Widows’, Orphans and Old Age Contributory Pensions Act 1925
[3] Willis v United Kingdom (2002) 35 EHRR
[4] Social Security Contributions and Benefits Act 1992, s39A
[5] Spouses or civil partners of deceased persons who meet the conditions may still claim WPA if their partner died before 6 April 2017. As of February 2019 there were 32,381 people claiming Widowed Parent’s Allowance: https://publications.parliament.uk/pa/cm201920/cmselect/cmworpen/85/8504.htm
[6] Written question 3788: https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2019-10-22/3788/
[7] Rights Brought Home: The Human Rights Bill, October 1997
[8] HRA 1998, s4(2). Only certain courts can make a declaration. The Upper Tribunal and First Tier Tribunal are not able to do so
[9] See Petrovic v Austria (1998) 33 EHRR 14
[10] Application No 45851/99, decision of 27 April 2000
[11] Jackson & Others v SSWP CO/975/2019, see https://cpag.org.uk/welfare-rights/legal-test-cases/bereavement-support-payments-unmarried-parents
[12] (2008) 47 EHRR 38
