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Denying bereavement benefits to unmarried partners with children is incompatible with ECHR

Supreme Court rules in favour of bereaved mother who was not married to her children’s father

The Supreme Court has decided that denying bereavement benefits to unmarried, cohabiting partners with children is incompatible with article 14 of the European Convention on Human Rights (ECHR) read with article 8.

Widowed parent's allowance ('WPA') is a contributory, non-means-tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. Under s 39A Social Security Contributions and Benefits (Northern Ireland) Act 1992 ('s 39A') the widowed parent can only claim the allowance if he or she was married to or the civil partner of the deceased.

The issue in An application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 was whether this requirement unjustifiably discriminated against the survivor and/or the children on the basis of their marital or birth status, contrary to article 14 of the ECHR when read with either the right to respect for family life under article 8, or the protection of property rights in Article 1 of the First Protocol (A1P1).

Ms McLaughlin's partner, John Adams, died on 28 January 2014. They were not married but had lived together for 23 years. They had four children, aged 19, 17, 13 and 11 years when their father died. He had made sufficient contributions for Ms McLaughlin to be able to claim WPA, had she been married to him. Her claims were refused by the Northern Ireland Department of Communities. She applied for judicial review of that decision on the ground that s 39A was incompatible with the ECHR.

The judge in the High Court agreed and made a declaration that s 39A was incompatible with article 14 read with article 8. The Court of Appeal, however, unanimously held that the legislation was not incompatible with article 14, read with either article 8 or A1P1. Ms McLaughlin therefore appealed to the Supreme Court.

Lady Hale, with whom Lord Mance, Lord Kerr and Lady Black agreed, gave the substantive judgment of the majority. Lord Hodge gave a dissenting judgment.

The Supreme Court stated that WPA exists because of the responsibilities of the deceased and the survivor towards the children, and its purpose is to diminish the financial loss caused to families with children by the death of a parent. This conclusion is reinforced by the international obligations to safeguard children's rights, to which the UK is party, which inform the interpretation of the ECHR rights; and it is noteworthy that in most other member states survivor's pensions are paid directly to the children irrespective of birth status.

The majority found that the exclusion of all unmarried couples from receipt of WPA will not always amount to unjustified discrimination, but it will inevitably do so in a legally significant number of cases, which is sufficient to require the court to make a declaration of incompatibility under s 4(2) of the Human Rights Act 1998. It will be for the relevant legislature to decide whether or how the law should be changed.

Alison Penny, Director of the Childhood Bereavement Network, said:

"We estimate that every year, over 2,000 families like Siobhan's face the double hit of one parent dying, and the other parent realising that they and the children are not eligible for bereavement benefits. And with cohabiting couples the fastest growing family type in the UK, the problem would only have got worse. On average, a cohabiting parent earning £10,000 a year lost out by over £15,000 over the children's childhood if their partner died and they couldn't claim Widowed Parent's Allowance.

"Widowed Parents Allowance was replaced in April 2017 with Bereavement Support Payment, but cohabiting parents are still ineligible for this new benefit. The Supreme Court has today established a principle that bereaved children shouldn't be disadvantaged because their parents weren't married. We call on Parliament to see the way the wind is blowing, and to apply this principle as soon as possible to the new benefit, in line with recommendations made over two years ago by the House of Commons Work and Pensions Select Committee. Otherwise, another bereaved family like Siobhan's will have to bring a test case, putting themselves through the gruelling emotional and practical challenges of coming to court.

"Each day that Parliament delays, another five grieving parents and their children will fall foul of this injustice."

For the judgment, click here. For the Supreme Court's summary, click here.