A woman who was refused a claim for widowed parent's allowance (WPA) following the death of her partner of 23 years, to whom she was not married, has won a ruling from the UK Supreme Court that legislation restricting the benefit to those who are married or in a civil partnership infringes human rights law.
By a four to one majority, the court held that s 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 was incompatible with article 14 of the European Convention on Human Rights, as read with article 8, insofar as it precluded any entitlement to WPA by a surviving unmarried partner of the deceased.
The case was brought by Siobhan McLaughlin from Co Antrim, who lived with her partner John Adams for 23 years, apart from two short periods of separation, and had four children by him. They did not marry because Mr Adams had promised his first wife that he would never remarry. Mr Adams died in January 2014 and her subsequent claim for WPA was refused.
Her application for judicial review of that decision succeeded in the Northern Ireland High Court, but the Court of Appeal overturned that ruling.
Lady Hale, with whom Lord Mance, Lord Kerr and Lady Black agreed, said that article 14, which secured the rights and freedoms of the Convention without discrimination, raised four somewhat overlapping questions.
The first was whether the circumstances fell within the ambit of one or more of the Convention rights. A breach of a right is not necessary. It was clear that denial of social security benefits fell within the ambit of article 1 of Protocol 1. WPA also fells within article 8, as it is a positive measure by the state demonstrating its respect for family life.
Next was whether there had been a difference in treatment between two persons in analogous situations. In Shackell v United Kingdom (2000), the European Court of Human Rights ruled inadmissible a complaint that a denial of widow’s benefits to unmarried surviving partners was discriminatory, holding that marriage conferred a special status and was different from cohabitation. In the present case, however the relevant facet of the relationship was not the public commitment but the co-raising of children. The purpose of WPA was to benefit the children; it made no difference to the children whether or not their parents were married to one another, but their treatment was very different. Lord Mance, supported by Lady Hale and Lord Kerr, further considered that the reasoning in Shackell failed to address the clear purpose of the widow’s benefits in that case, namely to cater for the interests of any relevant child, and the decision should not therefore be followed by the Supreme Court.
On the third question, whether that difference of treatment was on the ground of a relevant status, it was well established that being unmarried was a status for the purpose of article 14, just as being married could be.
Finally, was there objective justification for that difference in treatment? This depended on whether the difference pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The promotion of marriage and civil partnership was a legitimate aim, and WPA was part of a (small) package of social security measures which privileged marriage and civil partnership. However, it was not a proportionate means of achieving this legitimate aim to deny Ms McLaughlin and her children the benefit of Mr Adams’s contributions because they were not married to each other. WPA exists because of the responsibilities of the deceased and the survivor towards the children, and its purpose was to diminish the financial loss caused to families with children by the death of a parent. This conclusion was reinforced by the international obligations to safeguard children’s rights, to which the UK was party, which informed the interpretation of the ECHR rights; and it was noteworthy that in most other member states survivor’s pensions were paid directly to the children irrespective of birth status.
Lady Hale further observed: "It does not follow that the operation of the exclusion of all unmarried couples will always be incompatible. It is not easy to imagine all the possible permutations of parentage which might result in an entitlement to widowed parent’s allowance. The recent introduction into the household of a child for whom only the surviving spouse is responsible is one example. Whether it would be disproportionate to deny that child the benefit of the deceased’s contributions would be a fact specific question. But the test is not that the legislation must operate incompatibly in all or even nearly all cases. It is enough that it will inevitably operate incompatibly in a legally significant number of cases".
She also noted that the law had since changed, but the court had not heard argument on the effect of the change; it was not a reason for not making a declaration of incompatibility, because "the old law will remain relevant for deaths taking place before March 2017 for a very long time".
Lord Hodge, who dissented as respects the second and fourth questions, considered that the purpose of WPA was to assist the survivor rather than a benefit for bereaved children. The circumstances did not justify departing from the consistent line of authority from the ECtHR confirming the difference of status between marriage/civil partnership and cohabitation, so the situations were not analogous. Even had they been, the difference in treatment in the provision of a contributory rather than means tested benefit, not directed to need, was not manifestly disproportionate, but objectively justified.