The appellant, HM, was represented by Stephen Cottle and Desmond Rutledge of Garden Court Chambers, both acting pro bono. Counsel instructed by Jeremy Ogilvie-Harris of Hackney Law Centre.
The appellant, MK, was represented by Joshua Yetman, pro bono on behalf of the Free Representation Unit.
In HM v Secretary of State for Work and Pensions (BB); MK v Secretary of State for Work and Pensions (BB): [2023] UKUT 15 (AAC) the two appellants challenged the DWP’s refusal to award bereavement benefits following the deaths of their late partners, with whom they were in long-term relationships but not legally married. HM’s claim was made in November 2015, and MK’s in February 2017. In neither case was the appellant responsible for a qualifying child at the time. Hence the issues raised were different from those considered by the Supreme Court in Re McLaughlin’s Judicial Review [2018] UKSC 48. The appeals were based on there having been discrimination contrary to the Human Rights Act 1998.
It was common ground that as the requirement to be a “spouse” (or in a civil partnership) was contained in primary legislation, the only remedy if the appellants’ claims were upheld, would be a declaration of incompatibility. As this was something which the Upper Tribunal has no power to make, such a remedy would need to be sought from the Court of Appeal in due course.
In a complex and lengthy decision, UTJ Ward considered and ruled on the following issues:
Ground 1: discrimination on the ground of marital status
The first issue raised by the appeal was whether the appellants were discriminated against on the ground of marital status contrary to art.14 ECHR, taken with art.8 or A1P1.
Judge Ward concluded that he was bound by SSWP v Akhtar to hold that the appellants were not in an analogous position to a person who had been married to, or in a civil partnership with, their deceased partner. Ms Akhtar had gone through a marriage ceremony, albeit not one recognised as valid under English law, yet the Court of Appeal had upheld the decision to refuse bereavement benefits to her. If Ms Akhtar, whose case was arguably stronger than that of a surviving cohabitant (see Moylan LJ at [221]), could not succeed, a fortiori nor could a surviving cohabitant. Judge Ward said he was bound by Akhtar to hold that a cohabitant who has not contracted a marriage which is valid under English law is not in an analogous position with a person who has. NB: If Akhtar is not binding, Judge Ward says he would reach that conclusion in any event, for the reasons given by Treacy J in Re McLaughlin [2016] NIQB 11.
Ground 2: indirect discrimination on grounds of gender
The second issue was whether the requirement that a person with no eligible children makes a claim for bereavement benefit must have been married or in a civil partnership to be eligible impacts more on women than on men and so requires it to be justified.
According to official statistics (Bereavement Support Payment claimants - summary statistics, April 2017 to March 2020 (7 December 2021), a higher proportion of female (surviving claimants) claim bereavement benefits compared to men, “largely owing to a higher death rate in men of working age, than women, who tend to live longer.” Applying the indirect discrimination test in Hoogendijk v The Netherlands (2005) 40 EHRR SE22, and the approach to indirect discrimination against women as compared with men in R(SC) v SSWP [2021] UKSC 26, Judge Ward concluded that the exclusion of those who are not married from claiming bereavement benefits impacts disproportionately on women and so requires justification. NB see the Upper Tribunal’s conclusion on justification below.
Ground 3: discrimination on ground of sexual orientation and whether any remedy is available
The third issue arose because MK and HM could not enter into a civil partnership with their respective (opposite-sex) partners at the material time because it was legally impossible to do so, and so this involved a difference of treatment on the grounds of sexual orientation as in R(Steinfeld) v Secretary of State for International Development [2020] AC 1.
In Steinfeld, the argument that the difference in treatment could be justified by the Government’s wish to wait and see how matters developed following the introduction of same-sex marriage in 2014 was rejected. This meant that between 2014 and 2019 when the Civil Partnership (Opposite-sex Couples) Regulations (SI 2019/1458) extended civil partnerships to opposite-sex couples, same-sex couples had a choice which was not open to opposite-sex couples.
Notwithstanding there being a difference in treatment which could not be justified, Judge Ward accepted the Respondent’s argument that section 4 of the 1998 Act 1998 does not permit a declaration of incompatibility as the legislation has already been amended following the declaration of incompatibility in Steinfeld. The dicta of Lord Hobhouse in Wilson v First County Trust Ltd (No.2) [2002] UKHL 40 at [127] applied. As the Upper Tribunal’s conclusion on this point was obiter, the Judge added:
“Nothing that I have said in grappling with the above issue should be taken of course as expressing or implying any view as to how a higher court should exercise such discretion, if any, as it may have under s.4; that is entirely a matter for that court” (para 123).
Justification
In the final part of the decision, the Upper Tribunal considered the justification which includes an analysis of the following reasons for excluding entitlement to bereavement benefits to cohabitees without children:
To promote the institutions of marriage and civil partnership
The Government favoured formal relationships of a contractual nature which confer rights and impose obligations on those who enter into them. Judge Ward noted that the requirement to have been married had been considered by Parliament when the Welfare Reform and Pensions Act 1999 was passed, then with the addition of civil partnership, when the Pensions Act 2014 was passed and when the Bereavement Support Payment Regulations 2017 were approved under the affirmative procedure, the need to respect the boundaries between legality and the political process in R(SC) v SSWP [2021] UKSC 26 at [162] applied.
In pursuance of the rule that benefits derived from a person’s national insurance contributions are only payable to someone else on condition of marriage or civil partnership
Judge Ward said this policy was readily understandable and should carry weight. The judge also noted that if the appeals were successful and widely applied, the increase in the amount that would need to be paid was likely to be substantial. The judge said the aim was not undermined by evidence suggesting that awareness of bereavement benefits (their conditions of entitlement, including the requirement to have been married or in a civil partnership) is low.
Marriage and civil partnership remained the “dominant” (i.e. statistically most common) form of cohabiting relationship
The judge said he did not regard the fact that marriage and civil partnership are (taken together) the statistically most common form of relationship as particularly compelling given that Human rights legislation is frequently concerned with protecting the interests of those who are statistically in a minority. On the other hand, the judge said this aim was not undermined by the small number of civil partnerships. While the rationale for encouraging civil partnerships may have lost much of its force with the advent of same-sex marriage, civil partnership, like marriage, nonetheless confers a legal status and is objectively verifiable.
While the effect of McLaughlin and Simpson means that providing for the children outweighs the aim of promoting marriage and civil partnership, there is no reason why the aim cannot have a continuing life outside that context: Lord Mance in observation in McLaughlin at [52] considered.
A criterion based on marriage and civil partnership ensures administrative simplicity
The judge acknowledged that the DWP does in a number of contexts assess whether people who are not married or civil partners are living together as a married couple (or as civil partners). But the justification was in essence about the need for a “bright line” rule. The judge said the use of a bright line rule achieves a balance between the money available to be paid as a benefit and the administrative costs of doing so. The judge observed that marriage and civil partnership were readily verifiable. Those statuses were open to those in most partnerships, where any previous relationship had been terminated through divorce. For those reasons, it was an appropriate place to draw the bright line.
The need to avoid the potential for multiple claims in respect of the same death
The judge notes that the appellants put forward evidence saying that this was low risk and a mechanism could be put in place for dealing with conflicting benefit claims in respect of the same death.
Other forms of assistance are available
The judge observed that the DWP’s case on this point was “thin”. There is a significant difference between a contributory benefit, paid as of right and a means-tested benefit. A bereaved cohabitant would have to be quite severely lacking in income and capital in order to access a means-tested benefit - particularly a social fund funeral payment, which is hedged around with onerous conditions.
In paragraph 161, Judge Ward sets out his overall conclusion on the justification advanced by the DWP:
“I consider that the Government’s aim of promoting marriage and civil partnership, to maintain the integrity of the contribution system and to avoid excessive administration together amount to the very weighty reasons necessary to justify the differential impact of the provisions in question on women and men. The view is consistent with the view adopted when the matter has been considered by Parliament, which in my view must be taken as having been reached notwithstanding the obvious potential for financial problems following bereavement affecting the survivor.”
Click here for the transcript of HM v Secretary of State for Work and Pensions (BB); MK v Secretary of State for Work and Pensions (BB): [2023] UKUT 15 (AAC).
