We are pleased to welcome this guest post by Mark Simpson, Ulster University. Mark can be reached at Simpson-M7@email.ulster.ac.uk.
Denial of a widowed parent’s allowance because the claimant had not been married to her deceased partner unlawfully discriminated against her children, the Northern Ireland High Court has held.
Siobhan McLaughlin judicially reviewed the refusal of bereavement payment and widowed parent’s allowance on the death of her partner, whose national insurance contributions record would have conferred eligibility to both on a surviving wife or civil partner. The couple had lived together for 23 years, but were not married. The Department for Social Development ruled eligibility was limited to spouses and civil partners.
Treacy J upheld the decision in respect of bereavement payment on the grounds that it correctly reflected the explicit connection of the benefit to marriage or civil partnership, but held that the refusal of widowed parent’s allowance was unlawful because the status of the couple’s relationship should have been a secondary consideration to their joint responsibility for their children.
Refusal of the two benefits was first alleged to constitute an unlawful interference with the applicant’s right to individual autonomy under article 8 of the European Convention on Human Rights by penalising her decision not to marry. This argument was rejected outright because article 8 seldom imposes positive obligations on states to financially support citizens (Petrovic v Austria ) and because imposition of the rights and responsibilities of marriage on unmarried couples could as readily be argued to represent an infringement of individual autonomy as their denial.
The decision was also claimed to represent unlawful discrimination on the basis of marital status contrary to article 14 ECHR in conjunction with both article 8 and article 1, protocol 1 (P1-1), which protect rights to family life and enjoyment of possessions, including social security entitlements. Compatibility with the Convention rights was claimed to require that references to “spouse” or “civil partner” in the Social Security Contributions and Benefits (Northern Ireland) Act 1992 be read to include persons living together as spouses or civil partners.
The key questions for the court were (1) whether the position of the applicant was “analogous” to that of a bereaved wife or civil partner and (2) if so, was the difference in her treatment by the Department a proportionate means of pursuing a legitimate objective – a test used in Brewster . The judgment answers these questions differently in respect of each benefit.
Again citing Brewster along with a series of Strasbourg judgments spanning decades (Lindsay v UK ; Shackell v UK ; van der Heiiden v Netherlands ), Treacy J held that entry into a marriage or civil partnership signals acceptance of a distinct package of rights and responsibilities – as against one another and the state – that do not apply to cohabitees. A decision not to formalise the relationship thus is a decision not to “opt in” to the associated rights and responsibilities.
For the purposes of the claim for bereavement payment, therefore, the applicant’s position was not analogous to that of a bereaved wife. It was legitimate for the state to make receipt of a benefit on the basis of a deceased partner’s national insurance contributions contingent on marriage or civil partnership for the purposes of promoting these institutions. The decision does not address the respondent’s further submission that the distinction is necessary to provide an administratively straightforward means of delimiting eligibility for the benefit.
Given the wide margin of appreciation states enjoy in matters of economic and social policy, and that couples’ marital status is a matter of choice rather than an immutable characteristic like gender or sexual orientation (Swift ), it would only be unlawful to exclude cohabiting partners from bereavement payment if it were manifestly unreasonable to do so. An extensive body of case law was cited as proof that it is reasonable to promote marriage and civil partnership by restricting access to certain social benefits in this manner (ES ; Yigit v Turkey ).
Where marriage is not the most relevant consideration, case law was found to point to a different outcome. In particular, in PM v UK  married and unmarried parents were held to be analogous because they are subject to the same financial obligations in respect of their children.
Whereas bereavement payment is a benefit whose “sole beneficiary… is the partner of the deceased,” widowed parent’s allowance was found to be “granted due to parentage and co-raising of… children.” Since the surviving parent’s responsibilities towards her children are unaffected by marital status, the exclusion of unmarried partners from its scope “cannot be justified… even allowing for the state’s margin of appreciation,” being “inimical to the interests of children.”
Since the denial of the benefit discriminated against the couple’s children on the basis of their birth status, the decision was found to violate article 8 in conjunction with article 14.
The judgment is likely to have an impact on decision-making in respect of widowed parent’s allowance across the UK. Although social security is a devolved matter in Northern Ireland, articles 36 and 39A of the 1992 Act mirror the same sections of the equivalent legislation for Great Britain, the Social Security Contributions and Benefits Act 1992. Whether the Department for Work and Pensions, which is responsible for social security in England, Scotland and Wales, will revisit previous refusals of the benefit or face its own judicial review remains to be seen.
As an aside, the court considered a submission from the respondent that the application should be rejected on the grounds that judicial review is not the appropriate means of contesting a decision on a social security benefit when the right of appeal to a tribunal has not yet been exhausted. Treacy J held that judicial review was the “more obvious remedy.”
Mark Simpson is a PhD candidate at Ulster University (School of Law).