[2018] UKSC 48 On appeal from: [2016] NICA 53

JUDGMENT
In the matter of an application by Siobhan
McLaughlin for Judicial Review (Northern Ireland)
before
Lady Hale, President
Lord Mance
Lord Kerr
Lord Hodge
Lady Black
JUDGMENT GIVEN ON
30 August 2018
Heard on 30 April 2018
Appellant Respondent
Frank O’Donoghue QC Tony McGleenan QC
Laura McMahon Donal Lunny BL
Laura Curran BL
(Instructed by Francis
Hanna & Co Solicitors
)
(Instructed by
Departmental Solicitor’s
Office, Department of
Finance
)
1
st Intervener
(Child Poverty Action Group)
Helen Mountfield QC
Tom Royston
(Instructed by Herbert Smith
Freehills LLP
)
2
nd Intervener
(National Children’s Bureau)
Stephen Broach
(Instructed by Irwin Mitchell
LLP
)
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LADY HALE: (with whom Lord Mance, Lord Kerr and Lady Black agree)
1. Widowed parent’s allowance is a contributory social security benefit payable
to men and women who are widowed with dependent children. It is non-meanstested, so it is particularly valuable to parents who are in work, although it is taxable.
The widowed parent’s entitlement depends upon the contribution record of the
deceased partner. Currently, 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 this case is
whether this requirement unjustifiably discriminates against the survivor and/or the
children on the basis of their marital or birth status, contrary to article 14 of the
European Convention on Human Rights (“ECHR”) when read with either article 8
of the Convention or Article 1 of the First Protocol to the Convention (“A1P1”).
The facts
2. Ms McLaughlin and her partner, John Adams, lived together (apart from two
short periods of separation) for 23 years until he died on 28 January 2014. They did
not marry because Mr Adams had promised his first wife that he would never
remarry. They had four children, aged 19 years, 17 years, 13 years and 11 years
when their father died. He had made sufficient National Insurance contributions for
Ms McLaughlin to be able to claim a bereavement payment and widowed parent’s
allowance had she been married to him.
3. Ms McLaughlin’s claims for both bereavement payment and widowed
parent’s allowance were refused by the Northern Ireland Department for
Communities. She applied for judicial review of that decision on the ground that the
relevant legislation was incompatible with the ECHR. That claim succeeded in part
before Treacy J in the High Court: In the matter of an application by Siobhan
McLaughlin for Judicial Review: [2016] NIQB 11. He made a declaration of
incompatibility under section 4(2) of the Human Rights Act 1998, that section
39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act
1992 is incompatible with article 8 of the ECHR in conjunction with article 14
“insofar as it restricts eligibility for Widowed Parent’s Allowance by reference to
the marital status of the applicant and the deceased”. He rejected the claim in relation
to the bereavement payment. The Court of Appeal unanimously held that the
legislation was not incompatible with article 14, read either with article 8 or with
A1P1: [2016] NICA 53. Ms McLaughlin now appeals to this Court.
Page 3
The Evolution of Bereavement Benefits
4. National Insurance pensions for widows were first introduced under the
Widows’, Orphans’ and Old Age Contributory Pensions Act 1925. They provided a
pension for all widows whose husbands fulfilled the contribution conditions, at a
very modest flat rate with extra allowances for children. It was part of the piecemeal development of a National Insurance scheme, whereby people in work would
pay into a National Insurance fund which would provide benefits if they were
deprived of earnings through the ordinary vicissitudes of life: old age, invalidity,
unemployment and, in the social conditions of the time, widowhood. The
assumption – and at least among the middle classes the reality – was that women
would not work after marriage, so that for them the loss of a breadwinning husband
was the equivalent of the loss of a job through old age, invalidity or unemployment
for people in work. The National Insurance scheme was quite separate from the
relief of the destitute under the old Poor Law and its later replacements, beginning
with the National Assistance Act 1948. Those were strictly means-tested benefits,
whereas National Insurance benefits, having been paid for by contributions, were
not.
5. The National Insurance scheme was systematised and rationalised as a result
of the Beveridge Report on Social Insurance and Allied Services (Cmd 6404, 1942).
Beveridge proposed the replacement of “unconditional inadequate widows’
pensions” by a short-term widow’s benefit, payable for 13 weeks, to allow time for
readjustment and a longer term “guardian benefit” for those with dependent
children. Childless widows should be expected to work (para 153). However, the
Report acknowledged the difficulties of women who were widowed, or whose
children grew up, when they had reached an age at which it would be difficult to
find work (para 156). This concern was reflected in the eventual legislation, the
National Insurance Act 1946, which introduced three benefits: a widow’s allowance,
a widowed mother’s allowance and a widow’s pension where the claimant was
widowed over 50 or over 40 when widowed mother’s allowance ceased. In 1954,
the United Kingdom ratified the ILO Social Security (Minimum Standards)
Convention 1952 (No 102), which provided that “The contingency covered shall
include the loss of support suffered by the widow or child as the result of the death
of the breadwinner” (article 60).
6. This structure remained broadly unchanged until the Social Security Act
1986, which replaced the short-term widow’s allowance with a one-off lump sum
widow’s payment. It also increased the age threshold for full widow’s pension to 55
(a reduced rate pension was payable to those widowed, or whose widowed mother’s
allowance had ended, between 45 and 54). But the numbers of recipients had fallen,
from an average of almost 600,000 in the 1960s to an average of around 500,000 in
the 1970s. Social trends, including falling marriage rates, rising divorce rates and
increased male life expectancy, reduced the numbers of widows under pensionable
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age, from over 600,000 in 1951 to under 300,000 in 1995 (ONS/OPCS Marriage
and Divorce Statistics, FM2, nos 16, 23).
7. By then, of course, there had been many other profound social changes.
Women were no longer required or expected to give up work on marriage. Married
women’s participation in the labour force had grown dramatically, although their
working patterns were not identical to those of men, with many more leaving the
workforce or working part time, especially while children were young. Thus it is not
surprising that by the next wave of reform, most widows eligible for the benefits
were in work, although those with young children were far less likely than married
or cohabiting women to be working at all and less likely than other types of lone
mother to be working full-time (ONS, Living in Britain: Results from the General
Household Survey 1996, tables 5.23, 5.24). The availability of a non-means-tested
benefit may have played a part in this; but so may the greatly increased prevalence
of survivors’ benefits in occupational pension schemes in both the public and private
sectors.
8. The next wave of reform came about as part of a general package of welfare
and pension reforms introduced by the 1997 Labour Government. But a major spur
to their changes to bereavement benefits was that it had become inevitable that
widows’ benefits would be successfully challenged for discriminating against men.
Mr Willis had already begun his case in the European Court of Human Rights;
although judgment was not given until 2002, it was a reasonable prediction that he
would succeed in challenging his non-entitlement to both widow’s payment and
widowed mother’s allowance as incompatible with article 14 taken with A1P1: see
Willis v United Kingdom (2002) 35 EHRR 21 (he failed in relation to widow’s
pension because he did not then and might not ever meet the eligibility
requirements). One solution might have been to abolish widows’ benefits altogether,
save perhaps for the one-off payment, as being based on anachronistic assumptions
about the major vicissitudes in life, but to do so was seen as removing help for many
people in real need. Instead, there was a major re-focus, based on the defects
identified in the government’s green paper, A new contract for welfare: Support in
Bereavement (Cm 4104, November 1998): the then scheme did not give enough help
at the point of bereavement; gave most help to people who did not need widow’s
benefits because they were earning a decent living or had large occupational
pensions or life insurance; gave least help to the poorest widows on income support,
who saw nothing of their widows’ benefits; and discriminated against men (para 4).
9. The essential features of the new scheme were: first, it would apply equally
to widows and widowers; second, the one-off bereavement payment would be
increased from £1,000 to £2,000; third, there would be a widowed parent’s
allowance equivalent to the current widowed mother’s allowance; and fourth, there
would no longer be a widow’s pension, but a short-term bereavement allowance for
six months, for widows and widowers aged 45 or over with no dependent children.
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A disregard of £10 of the widowed parent’s allowance would be introduced into
means-tested benefits.
10. That was the scheme inserted into the Social Security Contributions and
Benefits Act 1992 for Great Britain by the Welfare Reform and Pensions Act 1999.
It was also the scheme inserted by statutory instrument (1999/3147 (NI 11)) into the
Social Security Contributions and Benefits (Northern Ireland) Act 1992, with which
this case is concerned. It was amended to take account of civil partnerships by the
Civil Partnerships Act 2004.
11. Since then, the scheme has been radically changed yet again, by the Pensions
Act 2014 and the Pensions Act (Northern Ireland) 2015, in respect of deaths taking
place after their implementation in March 2017. Bereavement payment and
widowed parent’s allowance have been abolished and replaced with a single
bereavement support payment available to all bereaved spouses and civil partners
irrespective of age. This is paid as an initial lump sum followed by monthly
instalments for up to 18 months. The rates are higher if the bereaved person is
pregnant or entitled to child benefit. The object is “to focus support on the period
immediately after bereavement”, it being “very common for bereavement to have a
large short-term impact on the finances of the surviving partner” (Government
Response to the public consultation: Bereavement Benefit for the 21st Century, Cm
8371, July 2012, p 16). As before, entitlement depends on the (simplified)
contribution record of the deceased and is not means-tested. Longer term impacts
are left to means-tested benefits with some transitional cushioning.
12. In essence, therefore, what began as a long-term replacement of a wife’s and
children’s loss of a breadwinning husband’s income, moved to a long-term
replacement of a breadwinner’s income while children were growing up, and is now
a transitional compensation for the immediate financial loss suffered by the survivor
and children on bereavement. The contribution conditions are now less onerous. In
none of these waves of reform was consideration given to extending the scheme to
unmarried partners. The Beveridge Report did briefly discuss “Unmarried person
living as a Wife”, pointing out that treatment of the problem was complicated by the
possibility that either or both parties might have a legal spouse. It recommended that
“Widow’s and guardian benefits should not be paid except to a woman who was the
legal wife of the dead man. Retirement pension should not be paid in respect of
contributions other than the woman’s own contributions, except to the legal wife of
the retired man” (para 348(ii)). That principle has not been officially questioned
since. The most recent government publication, on Bereavement Benefit for the 21st
Century (above), simply reports that some consultation respondents took the
opportunity to raise wider issues outside the scope of the consultation, including the
extension of bereavement benefit entitlement to cohabitees (p 15).
Page 6
The legislation in question
13. We need only consider section 39A of the Social Security Contributions and
Benefits (Northern Ireland) Act 1992, in the version in force when Mr Adams died:
“Widowed parent’s allowance.
(1) This section applies where –
(a) a person whose spouse or civil partner dies on or
after the appointed day is under pensionable age at the
time of the spouse’s or civil partner’s death, or
(b) a man whose wife died before the appointed day

(i) has not remarried before that day, and
(ii) is under pensionable age on that day.
(2) The surviving spouse or civil partner shall be entitled to
a widowed parent’s allowance at the rate determined in
accordance with section 39C below if the deceased spouse or
civil partner satisfied the contribution conditions for a widowed
parent’s allowance specified in Schedule 3, Part I, paragraph 5
and –
(a) the surviving spouse or civil partner is entitled to
child benefit in respect of a child or qualifying young
person falling within subsection (3) below; or
(b) the surviving spouse is a woman who either –
(i) is pregnant by her late husband, or
(ii) if she and he were residing together
immediately before the time of his death, is
Page 7
pregnant in circumstances falling within section
37(1)(c) above; or
(c) the surviving civil partner is a woman who –
(i) was residing together with the deceased
civil partner immediately before the time of the
death, and
(ii) is pregnant as the result of being
artificially inseminated before that time with the
semen of some person, or as a result of the
placing in her before that time of an embryo, of
an egg in the process of fertilisation, or of sperm
and eggs.
(3) A child or qualifying young person falls within this
subsection if … the child or qualifying young person is either –
(a) a son or daughter of the surviving spouse or civil
partner and the deceased spouse or civil partner; or
(b) a child or qualifying young person in respect of
whom the deceased spouse or civil partner was
immediately before his or her death entitled to child
benefit; or
(c) if the surviving spouse or civil partner and the
deceased spouse or civil partner were residing together
immediately before his or her death, a child or
qualifying young person in respect of whom the
surviving spouse or civil partner was then entitled to
child benefit.
(4) The surviving spouse shall not be entitled to the
allowance for any period after she or he remarries or forms a
civil partnership, but, subject to that, the surviving spouse shall
continue to be entitled to it for any period throughout which she
or he –
Page 8
(a) satisfies the requirements of subsection (2)(a) or
(b) above; and
(b) is under pensionable age.
(4A) The surviving civil partner shall not be entitled to the
allowance for any period after she or he forms a subsequent
civil partnership or marries, but, subject to that, the surviving
civil partner shall continue to be entitled to it for any period
throughout which she or he –
(a) satisfies the requirements of subsection (2)(a) or (b)
above; and
(b) is under pensionable age.
(5) A widowed parent’s allowance shall not be payable –
(a) for any period falling before the day on which the
surviving spouse’s or civil partner’s entitlement is to be
regarded as commencing by virtue of section 5(1)(1) of
the Administration Act; or
(b) for any period during which the surviving spouse
or civil partner and a person of the opposite sex to whom
she or he is not married are living together as husband
and wife; or
(c) for any period during which the surviving spouse
or civil partner and a person of the same sex who is not
his or her civil partner are living together as if they were
civil partners.”
14. Thus the key features are: the claimant must be under pensionable age at the
date of death and the allowance ceases once he or she reaches that age; the deceased
spouse or civil partner must have satisfied the prescribed contribution conditions
(the details need not concern us); the surviving spouse or civil partner must either
be pregnant (in the prescribed circumstances) or be entitled to child benefit in respect
of at least one child or qualifying young person who is either (a) the son or daughter
Page 9
of them both, or (b) a child or qualifying young person in respect of whom the
deceased was entitled to child benefit immediately before his or her death, or (c) a
child or qualifying young person in respect of whom the survivor was entitled to
child benefit, provided that the deceased and the survivor were living together
immediately before the death; and entitlement is lost if the survivor marries, forms
a civil partnership or when he or she cohabits as if married or in a civil partnership.
The ECHR
15. Article 14 of the ECHR provides that:
“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status.”
As is now well-known, this raises four questions, although these are not rigidly
compartmentalised:
(1) Do the circumstances “fall within the ambit” of one or more of the
Convention rights?
(2) Has there been a difference of treatment between two persons who are
in an analogous situation?
(3) Is that difference of treatment on the ground of one of the
characteristics listed or “other status”?
(4) Is there an objective justification for that difference in treatment?
Within the ambit?
16. Article 14 does not presuppose that there has been a breach of one of the
substantive Convention rights, for otherwise it would add nothing to their protection,
but it is necessary that the facts fall “within the ambit” of one or more of those: see
eg Inze v Austria (1987) 10 EHRR 394, para 36. In this case, it is clear that the denial
of a contributory social security benefit falls within the ambit of the protection of
Page 10
property in A1P1: see Willis v United Kingdom (2002) 35 EHRR 21, in relation to
the denial of widow’s payment and widowed mother’s allowance to widowers. The
Court did not there find it necessary to consider whether the facts also fell within
the ambit of the right to respect for family life protected by article 8 of the
Convention. But this could matter, in relation both to whether the claimant and her
children are in an analogous situation to a surviving spouse or civil partner and their
children and to the justification for the difference in treatment between them.
17. Another way of putting the relationship between article 14 and the
substantive Convention rights is that article 14 comes into play “whenever the
subject matter of the disadvantage … constitutes one of the modalities of the
exercise of the right guaranteed”: see eg Petrovic v Austria (1998) 33 EHRR 307,
para 28. In that case a father complained that a non-contributory parental leave
allowance was only available to mothers and not to fathers. At that date, it had not
yet been decided that non-contributory state benefits were covered by A1P1, so the
question was whether the allowance fell within the ambit of article 8. There was no
violation of article 8, because the state is under no obligation to provide such an
allowance. But “this allowance paid by the state is intended to promote family life
and necessarily affects the way in which the latter is organised as, in conjunction
with parental leave, it enables one of the parents to stay at home to look after the
children” (para 27). By granting such an allowance states are able to demonstrate
their respect for family life within the meaning of article 8 (para 29). Thus article 14
was applicable (although not violated in that case).
18. It could be said that the connection between the organisation of family life
and the parental leave allowance was closer in Petrovic than the connection between
the organisation of family life and the widowed parent’s allowance. However, to the
same effect is Okpisz v Germany (2005) 42 EHRR 32, where the refusal of child
benefit to certain migrants was held to violate article 14 taken with article 8: “By
granting child benefit, states are able to demonstrate their respect for family life
within the meaning of article 8; the benefits therefore come within the scope of that
provision.” (para 32). Most recently, in Aldeguer Tomás v Spain (2017) 65 EHRR
24, the court considered a claim for survivor’s benefits, brought by an unmarried
same sex partner before the introduction of same sex marriage in Spain, under article
14 read with both article 8 and A1P1: it reiterated that the notion of family life “not
only includes dimensions of a purely social, moral or cultural nature but also
encompasses material interests” (para 72). Judge Keller, the Swiss Judge,
considered that the claim should only have been considered under A1P1, because
financial support from the state primarily falls within A1P1; only some additional
element, such as a clear legislative intent to provide an incentive for the organisation
of family life, could bring it within article 8 (para O-I2).
19. In this case, as in Petrovic and Okpisz, such an element clearly exists. In M v
Secretary of State for Work and Pensions [2006] 2 AC 91, Lord Nicholls of
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Birkenhead accepted that the Child Support Act 1991 was “one of the ways the
United Kingdom evinces respect for children and the life of the family of which the
child is part” (para 17). Widowed parent’s allowance is only payable if there are
children or young people for whose care and support either the deceased or the
survivor or both were responsible: it is conditional on the survivor receiving child
benefit and thus being a primary carer for such a child. It is, as Lord Bingham put
it, one of the ways in which the state evinces respect for children and the life of the
family of which they are part. Indeed, it is a stronger case than child support, which
is simply a mechanism for enforcing the parent’s obligation to maintain one’s
children (and interestingly, when M got to Strasbourg, the court found a violation of
article 14 read with A1P1 and did not find it necessary to consider article 8: JM v
United Kingdom [2011] 1 FLR 491).
20. It is fair to say that the English courts have made rather heavy weather of the
ambit point, particularly in connection with article 8, because of its broad and illdefined scope. In M v Secretary of State for Work and Pensions, Lord Bingham also
said this (para 4):
“It is not difficult, when considering any provision of the
Convention, including article 8 and article 1 of the First
Protocol (‘article 1P1’), to identify the core values which the
provision is intended to protect. But the further a situation is
removed from one infringing those core values, the weaker the
connection becomes, until a point is reached when there is no
meaningful connection at all. At the inner extremity a situation
may properly be said to be within the ambit or scope of the
right, nebulous though those expressions necessarily are. At the
outer extremity, it may not.”
This is a difficult passage, because it is accepted that there is no need for the
substantive article to be “infringed” in order for article 14 to be engaged. But it does
suggest that the closer the facts come to the protection of the core values of the
substantive article, the more likely it is that they fall within its ambit.
21. Our attention was drawn to a number of other English authorities in which
the connection of article 14 with article 8 is discussed, but most of those are under
appeal and so it would be unwise to comment upon them. In Smith v Lancashire
Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916; [2018] 2 WLR
1063, Sir Terence Etherton MR agreed with counsel that “the only sure common
thread running through the various descriptions of the ambit test, for the purposes
of article 14, in the several speeches in M [2006] 2 AC 91 is that the connection or
link between the facts and the provisions of the Convention conferring substantive
rights must be more than merely tenuous” (para 48). Having quoted the relevant
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paragraphs from Petrovic and reviewed the domestic authorities, including M, he
summarised the position thus (para 55):
“The claim is capable of falling within article 14 even though
there has been no infringement of article 8. If the state has
brought into existence a positive measure which, even though
not required by article 8, is a modality of the exercise of the
rights guaranteed by article 8, the state will be in breach of
article 14 if the measure has more than a tenuous connection
with the core values protected by article 8 and is discriminatory
and not justified. It is not necessary that the measure has any
adverse impact on the complainant in a positive modality case
other than the fact that the complainant is not entitled to the
benefit of the positive measure in question.”
22. It may turn out that this is too restrictive a test: for example, “core values” is
a concept derived from the domestic rather than the Strasbourg jurisprudence. But
there is no problem applying it to the facts of this case. Widowed parent’s allowance
is a positive measure which, though not required by article 8, is a modality of the
exercise of the rights guaranteed by article 8. It has a more than tenuous connection
with the core values protected by article 8: securing the life of children within their
families is among the principal values contained in respect for family life. There is
no need for any adverse impact other than the denial of the benefit in question.
23. The fact that it also falls within the ambit of A1P1 is not a problem. The two
articles are safeguarding different rights – respect for family life and respect for
property. There is no reason to regard the latter as a lex specialis excluding the
former in those cases, such as this, where it applies. I therefore conclude that the
facts fall within the ambit, not only of A1P1, but also of article 8.
Analogous situation?
24. Unlike domestic anti-discrimination law, article 14 does not require the
identification of an exact comparator, real or hypothetical, with whom the
complainant has been treated less favourably. Instead it requires a difference in
treatment between two persons in an analogous situation. However, as Lord Nicholls
explained in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL
37; [2006] AC 173,
“… the essential question for the court is whether the alleged
discrimination, that is, the difference in treatment of which
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complaint is made, can withstand scrutiny. Sometimes the
answer to this question will be plain. There may be such an
obvious, relevant difference between the claimant and those
with whom he seeks to compare himself that their situations
cannot be regarded as analogous. Sometimes, where the
position is not so clear, a different approach is called for. Then
the court’s scrutiny may best be directed at considering whether
the differentiation has a legitimate aim and whether the means
chosen to achieve the aim is appropriate and not
disproportionate in its adverse impact.” (para 3)
As was pointed out in AL (Serbia) v Secretary of State for the Home Department
[2008] UKHL 42; [2008] 1 WLR 1434, there are few Strasbourg cases which have
been decided on the basis that the situations are not analogous, rather than on the
basis that the difference was justifiable. Often the two cannot be disentangled.
25. However, in Shackell v United Kingdom (Application No 45851/99, decision
of 27 April 2000), the European Court of Human Rights declared inadmissible a
complaint that denying widow’s benefits to unmarried surviving partners
discriminated against the survivor and her children on the ground of her unmarried
status and the children’s illegitimacy. The court accepted that this fell within the
ambit of A1P1, so found it unnecessary to consider whether it also fell within the
ambit of article 8. However, relying on the Commission’s view in Lindsay v United
Kingdom (1987) 9 EHRR CD 555, that marriage is different from cohabitation, it
held that the applicant’s situation was not comparable to that of a widow, although
it also went on to hold that in any event the difference in treatment was justified, and
hence by a majority that the application was inadmissible. In Burden v United
Kingdom (2008) 47 EHRR 38 the Grand Chamber agreed with Shackell that
marriage conferred a special status, but that was for the purpose of holding that
sisters who had lived together all their adult lives were not in an analogous situation
to married couples or civil partners for the purpose of inheritance tax relief (paras
62, 63).
26. It is always necessary to look at the question of comparability in the context
of the measure in question and its purpose, in order to ask whether there is such an
obvious difference between the two persons that they are not in an analogous
situation. The factors linking the claim to article 8 are also relevant to this question.
It was for this reason that Treacy J was able to distinguish between Ms
McLaughlin’s claim for the bereavement payment and her claim for widowed
parent’s allowance. In the case of the former, he held that the lack of a public
contract between Ms McLaughlin and Mr Adams meant that her situation was not
comparable with that of a widow and her claim must fail (paras 66, 67). That
decision has not been appealed. In the case of the latter, he held that the relevant
Page 14
“facet of the relationship” was not their public commitment but the co-raising of
children. For that purpose marriage and cohabitation were analogous (para 68).
27. In my view, that analysis is correct. Widowed parents’ allowance is only paid
because the survivor is responsible for the care of children who were at the date of
death the responsibility of one or both of them. Its purpose must be to benefit the
children. The situation of the children is thus an essential part of the comparison.
And that situation is the same whether or not the couple were married to one another.
It makes no difference to the children. But had the couple been married, their
treatment would be very different: their household would have significantly more to
live on while their carer is in work.
28. I cannot regard Shackell as conclusively against the conclusion that for this
purpose the situations are analogous. Unlike Treacy J, the court did not examine the
purpose of each benefit separately and ask whether they should be distinguished
when it came to the justification for excluding unmarried parents and their children.
It is also worth noting that in Sahin v Germany [2003] 2 FLR 671, the Grand
Chamber concluded that, because children of married and unmarried parents should
not be treated differently, neither should the unmarried parents – in that case an
unmarried father for the purpose of contact with his children.
29. It is also instructive that in Yiğit v Turkey (2011) 53 EHRR 25, the Grand
Chamber was faced with a difference in treatment for the purpose of survivors’
benefits between people who had only religious marriages and people who had civil
marriages. The court began its discussion by pointing out that “According to the
court’s settled case law, discrimination means treating differently, without an
objective and reasonable justification, persons in relevantly similar situations” (para
67, citing DH v Czech Republic (2007) 47 EHRR 3, para 175). It noted the
Government’s argument that civil and religious marriages were not similar for this
purpose (para 75). But it did not answer this question directly. Rather, it considered
whether religious marriage was a “status” within the meaning of article 14 and
concluded that it was (paras 79, 80). It then went straight on to consider whether the
difference in treatment was justified, thus implying that the situations were
relevantly similar, and held that it was (paras 82, 87).
30. Notably, Yiğit involved only the mother. It did not involve any of her
children, who were entitled to bereavement benefits in their own right. As shown by
the helpful intervention of the National Children’s Bureau, which hosts the
Childhood Bereavement Network, in the great majority of Council of Europe states
children of the deceased are directly eligible for bereavement benefits up to a certain
age. The United Kingdom is unusual in channelling benefits for children through
their parents.
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Other status?
31. It is well established both in Strasbourg and domestically that not being
married can be a status just as being married can be. In Yiğit v Turkey, for example,
the Grand Chamber held that “the absence of a marriage tie between two parents is
one of the aspects of personal status which may be a source of discrimination
prohibited by article 14” (para 79). In In re G (Adoption: Unmarried Couple) [2008]
UKHL 38; [2009] 1 AC 173, the House of Lords held that being unmarried was a
status for the purpose of deciding whether their inability to adopt was unjustified
discrimination under article 14.
Justification?
32. It follows, therefore, that the situation in this case is sufficiently comparable
to that of a widow or widower with children for the difference in treatment based on
the lack of a marriage tie to require justification. This in turn depends upon whether
it pursues a legitimate aim and whether there is “a reasonable relationship of
proportionality between the means employed and the aim sought to be realised”:
see, eg, Yiğit v Turkey, para 67, citing Larkos v Cyprus (1999) 30 EHRR 597, para
29).
33. Further, to quote Yiğit again, at para 70:
“The contracting states enjoy a certain margin of appreciation
in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment in
law.”
The margin of appreciation is the latitude which the Strasbourg court will allow to
member states, which is wider in some contexts and narrower in others. As the
Grand Chamber explained, in a much-quoted passage in Stec v United Kingdom
(2006) 43 EHRR 47, para 52:
“The scope of this margin will vary according to the
circumstances, the subject matter and the background. As a
general rule, very weighty reasons would have to be put
forward before the court could regard a difference in treatment
based exclusively on the ground of sex as compatible with the
Convention. On the other hand, a wide margin is usually
allowed to the State under the Convention when it comes to
general measures of economic or social strategy. Because of
Page 16
their direct knowledge of their society and its needs, the
national authorities are in principle better placed than the
international judge to appreciate what is in the public interest
on social or economic grounds, and the court will generally
respect the legislature’s policy choice unless it is ‘manifestly
without reasonable foundation’.”
In Willis v United Kingdom, although it concerned social security benefits where
normally a wide measure would be allowed, the court held, at para 39, that “very
weighty reasons” were required to justify a difference of treatment based exclusively
on the ground of sex, and no such reasons existed. On the other hand, in Stec, which
also concerned the benefits system, although the difference in treatment was based
on sex, it was inextricably linked to the difference in retirement ages between men
and women, which had historically been justified. It was a matter for member states
to determine when and how to phase that out.
34. Strictly speaking, the margin of appreciation has no application in domestic
law. Nevertheless, when considering whether a measure does fall within the margin,
it is necessary to consider what test would be applied in Strasbourg – that is why the
“manifestly without reasonable foundation” test has generally been applied
domestically in benefit cases. In cases which do fall within the margin which
Strasbourg will allow to member states, the domestic courts will then have to
consider which among the domestic institutions is most competent and appropriate
to strike the necessary balance between the individual and the public interest. In a
discrimination case such as In re G, it may be the courts. In other cases, it may be
the Government or Parliament.
35. The appellant, supported by the Child Poverty Action Group, argues that the
difference in treatment is based, or largely based, on the birth status of the children,
which is a “suspect ground”, requiring particularly careful scrutiny. Thus, it is
argued, the marriage condition has the effect that all, or almost all, the children
adversely affected are “illegitimate” – ie born to parents who are not married to each
other – and all, or almost all, the children positively affected will be “legitimate” –
ie born to parents who are married to one another. In fact, this will be so in a situation
like this case, when the parents cohabited for a long period and all the children who
fall within section 39A(3) are the children of both the deceased and the survivor. It
may very well not be so in other situations, where there are children of either the
deceased or the survivor from other relationships, marital or non-marital. It is
therefore only the situation covered by section 39A(3)(a) which deserves
particularly careful scrutiny.
36. The legitimate aim put forward by the respondent is to promote the
institutions of marriage and civil partnership by conferring eligibility to claim only
Page 17
on the spouse or civil partner of the person who made the contributions. There is no
doubt that the promotion of marriage, and now civil partnership, is a legitimate aim:
this was the reason why the denial of widow’s benefits to an unmarried partner was
held justified in Shackell; and why the preference given to civil over religious
marriage was held justified in Yiğit.
37. The mere existence of a legitimate aim is not enough: there has to be a
rational connection between the aim pursued and the means employed. Although
this is not spelled out in the Strasbourg case law, it follows from the fact that the
measure must pursue a legitimate aim. Whether there is a rational connection
between the aim in this case and the measure in question is more debateable. It seems
doubtful in the extreme that any couple is prompted to marry – save perhaps when
death is very near – by the prospect of bereavement benefits. But they are part of a
(small) package of social security measures in which it pays to be married rather
than to cohabit. Ms McLaughlin, like many cohabitants, complains that the social
security system is happy to recognise their relationship for some purposes but not
for this one. We have not gone into the detail of this. But the general picture is that
unmarried cohabitants are treated as a couple for the purpose of means-tested
benefits: they will get the benefits applicable to a couple rather than the benefits
applicable to two single people. This may sometimes be to their advantage: the
benefit cap is higher for couples and lone parents than it is for single adult
households. But it is often to their disadvantage, as the system assumes that two can
live together more cheaply than can two single households. The fact remains that
the social security system does privilege marriage and civil partnership in a few
ways: principally by permitting one partner to benefit from the contributions made
by the other, not only for bereavement but also for retirement pension purposes.
38. This, as it seems to me, is the nub of the matter. Where means-tested benefits
are concerned, it is difficult indeed to see the justification for denying people and
their children benefits, or paying them a lower rate of benefit, simply because the
adults are not married to one another. Their needs, and more importantly their
children’s needs, are the same. But we are concerned here with a non-means-tested
benefit “earned” by way of the deceased’s contributions. And the allowance is a
valuable addition to the household income if the survivor is in work. Is it a
proportionate means of achieving the legitimate aim of privileging marriage to deny
Ms McLaughlin and her children the benefit of Mr Adams’ contributions because
they were not married to one another?
39. In my view, the answer to that question is manifestly “no”, at least on the
facts of this case. 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
Page 18
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.
40. That view is reinforced by the international obligations to which the United
Kingdom is party and which inform the interpretation of the guarantees contained
in the ECHR even though they have not been directly incorporated into United
Kingdom law: see eg ZH (Tanzania) v Secretary of State for the Home Department
[2011] UKSC 4; [2011] 2 AC 166. Principal amongst these is article 3 of the United
Nations Convention on the Rights of the Child (“UNCRC”), which states that “in
all actions concerning children … the best interests of the child shall be a primary
consideration”. Given the direct link with children, there cannot be much doubt that
the provision of widowed parent’s allowance is an action concerning children.
Article 26 requires State parties to “recognise for every child the right to benefit
from social security, including social insurance …”. Article 2 of the UNCRC
requires state parties to “respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any
kind, irrespective of the child’s or his or her parent’s … birth or other status”. To
like effect is article 10 of the International Covenant on Economic Social and
Cultural Rights 1966. Denying children the benefit of social insurance simply
because their parents were not married to one another is inconsistent with that
obligation.
41. It is also noteworthy that the great majority of member states of the Council
of Europe provide survivor’s pensions directly to the children irrespective of birth
status and in every other member state for which evidence is available, apart from
Malta, where a pension is not paid directly to the child a pension can be paid to the
surviving parent whether or not they were married to the deceased parent. This is
evidence of a European consensus which is always relevant to the width of the
margin of appreciation which Strasbourg will allow.
42. This is not a difficult conclusion to reach on the facts of this case, where the
couple lived together for many years, were recognised as doing so for other purposes
by the Department for Communities and were parents of all the children involved.
Their children should not suffer this disadvantage because their parents chose not to
marry – as it happens for a commendable reason, but it might not always be so. This
unjustified discrimination in the enjoyment of a Convention right is enough to
ground a declaration of incompatibility under section 4(2) of the Human Rights Act.
43. 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
Page 19
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: see Christian Institute v Lord Advocate [2016]
UKSC 51; 2016 SLT 805, para 88. A declaration of incompatibility does not change
the law: it is then for the relevant legislature to decide whether or how it should be
changed.
44. It also does not follow that the new law is incompatible. Although we have
been advised of its existence, we have not heard argument about it, and the argument
would no doubt be very different from the argument we have heard in this case. But
I do not see the fact that the law has now changed as a reason for not making a
declaration of incompatibility: the old law will remain relevant for deaths taking
place before March 2017 for a very long time.
45. I would therefore allow the appeal and make a declaration that section 39A
of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is
incompatible with article 14 of the ECHR, read with article 8, insofar as it precludes
any entitlement to widowed parent’s allowance by a surviving unmarried partner of
the deceased.
LORD MANCE: (with whom Lady Hale, Lord Kerr and Lady Black agree)
46. This appeal had led to disagreement between a majority view contained in
the judgment prepared by Lady Hale and a minority view expressed by Lord Hodge.
While I come down in favour of the former view, I recognise the force of a number
of points made by Lord Hodge.
47. The majority view faces the difficulty that the European Court of Human
Rights declared inadmissible all aspects of the complaint made by Joanna Shackell
in Shackell v United Kingdom (Application No 45851/99). That complaint included
as one element the refusal to an unmarried mother of a widowed mother’s allowance
following the death of her partner in 1995. The Welfare Reform and Pensions Act
1999 replaced that allowance with widowed parent’s allowance, to cater for the
death of either member of a married couple, but nothing in that change affects the
reasoning in Shackell.
48. Equally, I do not think that it is possible to treat Shackell as a case where the
court failed to distinguish between the benefits there claimed or to ask whether they
should be treated separately or to focus on the children. Ms Shackell, represented by
a welfare rights worker, made a distinct claim that her children were “discriminated
Page 20
against by reason of their illegitimate status”, arguing that the refusal to pay her
widow’s benefits in respect of her children had a direct financial consequence on
her family life: violation of article 8 taken in conjunction with article 14 of the
Convention. The court dealt with this specifically as a complaint about non-payment
of widowed mother’s allowance, to which it gave a distinct response as follows:
“whilst it is true that the applicant does not receive Widowed
Mother’s Allowance, the reason for her not being eligible is
that she and her late partner were not married. It is not related
to the status of the children …”
The court added that it followed that the applicant’s ineligibility for widowed
mother’s allowance was compatible with the Convention for the same reasons as
those which it had already set out in rejecting the claim so far as it related to widow’s
benefits simpliciter.
49. We are therefore squarely confronted with a need to consider whether the
Court’s approach in Shackell, set out in para 48 above, should now be regarded as
wrong or should not be followed, at least domestically. In my opinion, that is indeed
the position. The existence of marriage was of course a condition of eligibility for
widowed mother’s allowance in Shackell; that was the very basis of complaint there
– just as the requirement of marriage or a civil partnership is on this appeal the basis
of complaint in relation to widowed parent’s allowance. But the reasoning in
Shackell fails to address what I regard as the clear purpose of this allowance, namely
to continue to cater, however broadly, for the interests of any relevant child. Refusal
of the allowance to the survivor of a couple who are neither married nor civil
partners cannot simply be regarded as a detriment to the survivor of the couple.
Refusal would inevitably operate in a significant number of cases to the detriment
of the child.
50. There is common ground between the majority and the minority that the
widowed parent’s allowance falls within the ambit of article 8 (see Lord Hodge, para
70). In my opinion, its refusal was and is prima facie a violation of article 14 read
with article 8, as well as of article 14 read with A1P1. Bearing in mind that the main
purpose of widowed parent allowance is to secure the continuing well-being of any
child of a survivor, there seems in this context to be no tenable distinction, and
indeed manifest incongruity in the difference in treatment, between a child of a
couple who are married or civil partners and the child of a couple who are not.
51. In a large number of cases the effect would also be to discriminate against a
child who was illegitimate. Indirect discrimination does not depend on the reason
for or purpose of the conduct complained of, but on its effect. The European Court
Page 21
of Human Rights does not appear to have addressed this aspect in its brief reasoning
set out in para 48 above. And legitimacy or illegitimacy is a status. As Lady Hale
points out in paras 42-43, we do not need to consider other situations on this appeal.
52. A policy in favour of marriage or civil partnership may constitute justification
for differential treatment, when children are not involved. But it cannot do so in
relation to a benefit targeted at the needs and well-being of children. The fact that
the widowed parent’s allowance may cease or be suspended in some situations is no
answer to this. The underlying thinking is no doubt that adequate support will be or
is likely to be derived from another source in such situations. The provisions for
cessation or suspension may not be entirely logical or reflect entirely accurately the
circumstances in which adequate alternative support may be expected. But, if so,
that does not appear to me to affect the analysis that widowed parent’s allowance is
fundamentally aimed at securing the needs and well-being of children.
53. I take the points made by Lord Hodge (paras 85-87) that it is not always easy
to judge how different benefits interact and how easy they may be to administer. But
the position of couples who are neither married nor civil partners is already catered
for in other situations known to the law. The starting point is surely that, where
children are for relevant purposes in a similar situation, the law would be expected
to deal with them in the same way. I am not persuaded that any substantial grounds
exist for thinking that this was not and is not feasible, as well as just, in the present
context.
54. For these reasons, and for the additional reasoning on further points
mentioned in Lady Hale’s judgment, I join with the majority in allowing this appeal
relating to widowed parent’s allowance.
LORD HODGE: (dissenting)
55. I regret that I find myself in disagreement with the majority on this appeal.
In my view the widowed parent’s allowance (“the WPA”) is not incompatible with
article 14 of the European Convention on Human Rights (“the ECHR”) when taken
with either article 8 of the ECHR or article 1 of the First Protocol to the ECHR
(“A1P1”). I am very grateful to Lady Hale for setting out the facts, the evolution of
bereavement benefits and the legislation, which I do not have to repeat. In explaining
my disagreement, I will draw attention to certain features of the legislation which
are to my mind of greater importance than the majority acknowledges.
56. We are concerned with the version of section 39A of the Social Security
Contributions and Benefits (Northern Ireland) Act 1992 (“the 1992 Act”) which was
Page 22
in force when Mr Adams died on 28 January 2014 and which Lady Hale has set out
in para 13 of her judgment. The discrimination which the majority sees as
incompatible with the ECHR is the exclusion of the survivor of a couple who were
not married or in a civil partnership from the benefit of the WPA because, it is
reasoned, the discrimination, which that exclusion entails, has not been justified and
so is contrary to article 14 when read with article 8 of the ECHR.
The legislation
57. There are a number of features of the WPA which are material to my analysis.
First, the WPA is a contributory benefit. The deceased spouse or civil partner (“the
Deceased”) must have satisfied the prescribed contribution conditions (section
39A(2) and Schedule 3 Part I, paragraph 5). The benefit which becomes available to
the surviving spouse or civil partner (“the Survivor”) is thus the result of the
Deceased’s contributions. Secondly, the WPA is not means-tested but is payable
even if the Survivor earns a substantial income through work, and it is subject to
income tax as part of the Survivor’s income (formerly under section 617 of the
Income and Corporation Taxes Act 1988 (“ICTA”) and now under Part 9, chapter 5
of the Income Tax (Earnings and Pensions) Act 2003 (“ITEPA”)). As discussed
below, the WPA is treated as pension income of the Survivor. Thirdly, the WPA is
payable not only when the Survivor has a responsibility for children (section
39A(3)) but also if the Survivor is a woman and is pregnant in specified
circumstances (section 39A(2)(b) & (c)). Fourthly, the WPA ceases to be payable
(a) when the Survivor reaches pensionable age (section 39A(4A)(ii)) and (b) if the
Survivor marries or enters into a civil partnership (section 39A(4) and (4A)), and is
not payable so long as the Survivor cohabits with a person of the opposite sex as if
they were married or with a person of the same sex as if they were civil partners
(section 39A(5)(b) & (c)).
58. The first and second features – that the Survivor’s entitlement is dependent
on the Deceased’s contributions and is not means-tested – point to the importance of
the nexus between the Survivor and the Deceased. It is the nature of that relationship
which gives the Survivor the right to benefit from the deceased’s contributions. The
WPA is payable not only if there is a child of the Deceased and the Survivor or a
child in respect of whom the Deceased had been entitled to child benefit immediately
before his or her death (section 39A(3)(a) & (b)) but also if the Deceased and the
Survivor had been living together immediately before the death and there was a child
in respect of whom the Survivor was then entitled to child benefit (section
39A(3)(c)). Thus, the WPA is made available to the Survivor if he or she is
responsible for a child for whom the Deceased was not responsible. The third and
fourth features – the availability of the WPA to a pregnant woman and especially the
circumstances in which WPA ceases to be payable or is suspended, point to the focus
of the benefit on the provision of assistance to the bereaved Survivor: WPA, by
replacing income earned by the Deceased, gives the Survivor the options of not
Page 23
working or of working for less hours after bereavement, notwithstanding his or her
current or future financial responsibility for children. That replacement income is
ended or suspended when the Survivor enters into a relationship with another which
may be expected to yield alternative financial support. In the public consultation
document, “Bereavement Benefit for the 21st century”, (Cm 8221) which the
Secretary of State for Work and Pensions presented to Parliament in December
2011, it was recognised that the bereavement benefits were not affected by paid
employment and that the majority of people who applied for those benefits were
likely to be in work. In that document the WPA was described as “providing support
towards the additional costs of raising children” (p 14) and the function of it and
other bereavement benefits was described in these terms:
“a key function of bereavement benefits is to provide some
financial security in the period immediately after spousal
bereavement to allow people to take time away from work
should they need this.” (p 16)
This latter description is not wholly accurate as the WPA, unlike the short-term
bereavement allowance, is not confined to the 52 weeks immediately after the
bereavement. But the focus on the financial security of the Survivor applies to each
of the bereavement benefits.
59. This focus on the position and welfare of the Survivor is consistent with the
evolution of bereavement benefits which Lady Hale has summarised in paras 4 to
12 of her judgment. The initial aim of bereavement benefits was to relieve the plight
of the widow under pensionable age who lost the support of a bread-winning
husband at a time when many married women did not work. Social change,
including the increase in the number of married women and widows who engage in
paid work, led to the demise of the widow’s pension, which was payable to a widow
aged over 45 when widowed and continued to be paid until she drew her retirement
pension, and its replacement with a bereavement allowance for up to 52 weeks,
while the WPA provided longer-term income substitution to the Survivor, in
recognition of her responsibility for children.
60. The WPA, as a contributory benefit, stands in contrast to means-tested
benefits for the support of children such a child tax credit, which now is being
replaced by universal credit. Such means-tested benefits do not require a nexus
between a deceased contributor and a surviving claimant but are payable because of
the need to provide for the welfare of children. The WPA counts as income in
relation to means-tested benefits but £10 of the WPA is disregarded when
calculating entitlement to means-tested benefits: Regulation 104 of and paragraph
16 of Schedule 8 to the Employment and Support Allowance Regulations (Northern
Page 24
Ireland) 2008 (SI 2008/280). Accordingly, a person in receipt of means tested
benefits will often obtain only limited assistance from an entitlement to WPA.
Securing ECHR rights without discrimination
61. Lady Hale has set out article 14 of the ECHR and the four questions which it
raises in para 15 of her judgment. In relation to the first question (“do the
circumstances ‘fall within the ambit’ of one or more of the Convention rights?”), it
has been established in Willis v United Kingdom (2002) 35 EHRR 21 that the denial
of a contributory social security benefit falls within the ambit of the A1P1 right. I
therefore postpone my consideration of the concept of the ambit of a Convention
right until I consider article 14 taken with article 8 below. In Willis the challenge to
the denial of a widow’s payment and a widowed mother’s allowance (the precursor
of the WPA) to widowers succeeded under article 14 taken in conjunction with A1P1
and the Strasbourg court (“the ECtHR”) did not have to consider the complaint under
article 14 in conjunction with article 8.
62. A similar challenge under article 14 taken in conjunction with A1P1 was
made by an unmarried mother of three children who had had a long-term relationship
with a man who was the children’s father in the case of Shackell v United Kingdom
(Application No 45851/99) decision of 27 April 2000. She complained that the
United Kingdom’s social security legislation discriminated against her because she
was an unmarried surviving partner by denying her a right to the widow’s benefits
available to married women (including the widowed mother’s allowance). The
ECtHR treated the right to widow’s benefits as a pecuniary right for the purposes of
A1P1 and saw no need to determine whether the facts also fell within the ambit of
article 8. The court by majority declared the application inadmissible because it was
manifestly ill-founded within the meaning of article 35 of the ECHR. In reaching
that conclusion the ECtHR considered not only the applicant’s claim to widow’s
benefits generally but also the children’s claim that they were discriminated against
in relation to widowed mother’s allowance. The ECtHR referred to the decision of
the European Commission of Human Rights in Lindsay v United Kingdom (1987) 9
EHRR CD 555 in which the Commission rejected a comparison between unmarried
cohabitees and a married couple in relation to the incidence of income tax on the
basis that they were not in analogous situations. The Commission stated:
“Though in some fields the de facto relationship of cohabitees
is now recognised, there still exist differences between married
and unmarried couples, in particular, differences in legal status
and legal effects. Marriage continues to be characterised by a
corpus of rights and obligations which differentiate it markedly
from the situation of a man and woman who cohabit.”
Page 25
The court, while recognising that since 1986 there had been increased social
acceptance of stable personal relationships outside marriage, stated:
“However, marriage remains an institution which is widely
accepted as conferring a particular status on those who enter
into it. The situation of the applicant is therefore not
comparable to that of a widow.”
Recognising that the ECHR gives States a certain margin of appreciation in the
assessment of the extent to which differences in otherwise similar situations justify
a different treatment in law, the court held that the promotion of marriage, by
conferring limited benefits for surviving spouses, could not be said to exceed the
margin of appreciation afforded to the UK Government.
63. Shackell was decided in 2000; and in 2008 the Grand Chamber of the ECtHR
confirmed that approach in Burden v United Kingdom (2008) 47 EHRR 38. In that
case two unmarried sisters, who had lived together all their lives and who for 31
years had jointly owned the house in which they lived, complained under article 14
taken with A1P1 that it was unjustified discrimination for the UK tax system to deny
them the exemption from inheritance tax which was available to property passing
between spouses or civil partners. In holding that there was no discrimination and
therefore no violation of article 14 taken with A1P1, the Grand Chamber stated (para
63):
“Moreover, the Grand Chamber notes that it has already held
that marriage confers a special status on those who enter into
it. The exercise of the right to marry is protected by article 12
of the Convention and gives rise to social, personal and legal
consequences. In Shackell, the court found that the situations
of married and unmarried heterosexual cohabiting couples
were not analogous for the purposes of survivors’ benefits,
since ‘marriage remains an institution which is widely accepted
as conferring a particular status on those who enter it’. The
Grand Chamber considers that this view still holds true.”
(Emphasis added)
The Grand Chamber went on to state (para 65) that what set marriage and civil
partnership apart from other forms of cohabitation was the express public
undertaking of a body of rights and obligations of a contractual nature. The legally
binding agreement which marriage or civil partnership entailed rendered those
relationships fundamentally different from the relationship of cohabitation,
regardless of its long duration. See also, more recently albeit in the different context
Page 26
of testimonial privilege, Van der Heijden v Netherlands (2012) 57 EHRR 13, paras
69 and 84. Thus in Yiğit v Turkey (2011) 53 EHRR 25, the Grand Chamber expressed
the view (in para 72) that marriage is characterised by a corpus of rights and
obligations that differentiated it materially from other situations of a man and a
woman who cohabit and stated:
“States have a certain margin of appreciation to treat differently
married and unmarried couples, particularly in matters falling
within the realm of social and fiscal policy such as taxation,
pensions and social security.”
64. I am not persuaded that this court has grounds for departing from this
consistent line of authority from the ECtHR which the Grand Chamber has recently
endorsed in Burden and Yiğit. It provides a clear answer to a complaint based on
article 14 taken with A1P1. There is no suggestion that Strasbourg jurisprudence is
evolving on this issue in the context with which this appeal is concerned, namely
the entitlement of a surviving partner to state benefits arising out of the deceased’s
contributions. Further, the ECtHR has not suggested that an analysis of those
complaints in the context of article 14 taken with article 8 would have caused it to
have reached a different decision in Shackell. In my view, the ECtHR’s treatment of
marriage and civil partnership as conferring a status which distinguishes them from
cohabitation, while not binding on this court, is a very important component of any
analysis of a challenge under article 14 taken together with article 8, to which I will
turn. But it is necessary to consider first whether the present case falls within the
ambit of article 8.
The ambit of article 8
65. It has long been established in the jurisprudence of the ECtHR that article 14,
which seeks to secure without discrimination the enjoyment of the rights and
freedoms contained in the substantive provisions of the ECHR and its protocols,
does not require any breach of those substantive provisions. It is sufficient for article
14 to apply that the facts of the case fall within the ambit of one or more of those
substantive provisions: Abdulaziz Cabales and Balkandali v United Kingdom (1985)
7 EHRR 471, para 71; Inze v Austria (1987) 10 EHRR 394, para 36; Petrovic v
Austria (1998) 33 EHRR 357, para 22; and, more recently, Aldeguer Tomás v Spain
(2017) 65 EHRR 24, para 74. In the latter case (para 74) the ECtHR continued:
“The prohibition of discrimination enshrined in article 14
applies to those additional rights, falling within the general
scope of any Convention article, for which the state has
voluntarily decided to provide.”
Page 27
While article 8 does not require the state to provide financial support to a family in
the form of state benefits, such support as the state choses to provide must be
provided without discrimination. For the ECtHR has held that family life in article
8 includes not only “dimensions of a purely social, moral or cultural nature but also
encompasses material interests”: Merger v France (2004) 43 EHRR 51, para 46;
Aldeguer Tomás (above) para 72. Thus, for example, the provision of child benefits
to the parents of a child has been characterised as a way by which “states are able to
demonstrate their respect for family life”: Okpisz v Germany (2005) 42 EHRR 32,
para 32.
66. Article 8 confers a right that the state will show respect for private and family
life. The provision of financial support is “one of the modalities of the exercise of a
right guaranteed”: Petrovic (above), para 28. I interpret “modality” as a particular
mode in which something is done or expressed; in relation to article 8, it is a way in
which the state expresses its support for family life.
67. In our domestic jurisprudence, Lord Nicholls of Birkenhead summarised the
position thus:
“Article 14 is engaged whenever the subject matter of the
disadvantage comprises one of the ways a state gives effect to
a Convention right (‘one of the modalities of the exercise of a
right guaranteed’). For instance, article 8 does not require a
state to grant a parental leave allowance. But if a state chooses
to grant a parental leave allowance it thereby demonstrates its
respect for family life. The allowance is intended to promote
family life. Accordingly the allowance comes within the scope
of article 8, and article 14 read with article 8 is engaged:
Petrovic v Austria (2001) 33 EHRR 307, paras 27-30.”
(M v Secretary of State for Work and Pensions [2006] 2 AC 91, para 16)
68. More recently, in R (Steinfield) v Secretary of State for International
Development [2018] UKSC 32; [2018] 3 WLR 415, in which the appellants
successfully challenged as discriminatory the Civil Partnership Act 2004 because it
did not make civil partnerships available to different-sex couples, Lord Kerr of
Tonaghmore said this (para 18):
“Before Andrews J and the Court of Appeal it had been
submitted that an adverse effect in relation to article 8 had to
be demonstrated in order for an avowed infringement to come
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within its scope or ambit. Counsel for the respondent did not
seek so to argue before this court. They were right not to do so.
Recent case law from the European Court of Human Rights
(ECtHR) makes it clear that no detrimental effect need be
established. … In particular, in Vallianatos [v Greece (2013)
59 EHRR 12] ECtHR found that the introduction of registered
partnerships only for different sex couples, to exist alongside
marriage which was also only open to different sex couples,
constituted a breach of article 14 read with article 8 of the
Convention: paras 80-92.”
As a result, in order to avoid a finding of an infringement of article 14, the Secretary
of State had to show the unequal treatment of different sex couples was justified.
69. Like Lady Hale, I see no basis for the assertion that A1P1 is a lex specialis
which excludes consideration of article 8. When the ECtHR has decided cases under
article 14 taken with A1P1 and found it unnecessary to consider a claim relating to
the same facts under article 14 taken with article 8, it has not suggested that A1P1
has excluded consideration of article 8. When the ECtHR has dismissed a challenge
under article 14 taken with A1P1 and has then declined to consider article 14 taken
with article 8 (as it did in Shackell), one may readily infer that the ECtHR does not
see a different result arising from the latter assessment. Indeed, it is questionable
whether one can avoid such an inference. But I see no justification for inferring more
than that.
70. In my view A1P1 is a more natural home for social security benefits such as
the WPA than article 8 because it is a benefit which is directed to assist the bereaved
widow/widower or civil partner who has lost the financial support of the deceased.
But it is payable if and only if the Survivor has responsibility for children and it
thereby can be seen as a means, albeit indirectly, by which the state shows respect
for family life. I agree therefore that the WPA falls within the ambit of article 8. It
is the positive act of providing the WPA, which provides assistance to the Survivor
who is responsible for children and thereby promotes family life, that brings the
benefit within the ambit of article 8.
The remaining questions
71. As a result, it is necessary to consider the other three questions which Lady
Hale has set out in para 15 of her judgment. They are:
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(1) Has there been a difference of treatment between two persons who are
in an analogous situation?
(2) Is that difference of treatment on the ground of one of the
characteristics listed or “other status”?
(3) Is there an objective justification for that difference in treatment?
72. I agree with Lady Hale that not being married can be a status: Yiğit v Turkey
(2011) 53 EHRR 25, paras 79-80; In re G (Adoption: Unmarried Couple) [2008]
UKHL 38; [2009] AC 173, paras 8 (Lord Hoffmann), 107 (Lady Hale) and 132-133
(Lord Mance). Different treatment in the field of state benefits based on a person not
being married would not however be a “suspect ground” which requires the court to
exercise closer scrutiny: see, by analogy, Swift v Secretary of State for Justice [2013]
EWCA Civ 193; [2014] QB 373, Lord Dyson MR at paras 24-25. Where I differ
from the majority is on the first and third questions above, to which I now turn.
Those questions are not rigidly compartmentalised. The ECtHR often addresses the
third question without conducting a separate analysis of the first question. This is
unsurprising because there is a considerable overlap between the two questions in
the assessment as to whether there has been unjustifiable discrimination.
Was there unjustifiable discrimination?
73. The first question is whether an unmarried bereaved cohabitee is in an
analogous situation to a bereaved survivor who had been married to or in a civil
partnership with the deceased. In my view he or she is not. As the appellant is a
woman, I will refer to the survivor as “she” in the discussion which follows.
74. The majority suggests that they are in an analogous situation because it
accepts Treacy J’s analysis that the relevant facet of the relationship between the
deceased and the survivor was the co-raising of children (emphasis added). It is
stated that the WPA is payable only if the survivor is responsible for the care of
children who were at the date of death the responsibility of one or both of them (para
27). That statement is correct. But it does not follow, as the majority asserts, that the
purpose of the WPA is to benefit the children. There are a number of important
characteristics of the WPA which show that it is a benefit to assist the bereaved
Survivor rather than a benefit for bereaved children, although I recognise that it
would benefit the children by providing additional income to the family unit.
75. First, as I have said, the WPA is a benefit which replaces the lost income of
the deceased and thereby gives the Survivor the opportunity not to work or to work
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reduced hours while she is responsible for children. Unlike benefits which are paid
to meet a specific need of the claimant, the WPA, as an income replacing benefit, is
taxable as pensions income in the hands of the Survivor: see formerly section 617
of ICTA and now sections 565, 566 and 577 of ITEPA.
76. Secondly, the WPA ceases to be payable while the Survivor remains
responsible for relevant children in several circumstances which are the personal
circumstances of the Survivor. If she reaches retirement age, if she remarries or
enters into a civil partnership, so long as she cohabits with a partner of either gender,
or if she dies, the WPA ceases to be payable. It is to my mind striking that the WPA
ceases to be paid as soon as the Survivor enters into one of the specified
relationships, regardless of whether the Survivor’s new partner undertakes any
responsibility for the children. If the WPA were properly characterised as a benefit
for the bereaved children, it might be difficult to defend the rationality of these rules.
77. Thirdly, the WPA is a contributory benefit. In most circumstances it is
payable only if the Deceased has made sufficient National Insurance contributions.
The Survivor’s benefits, which are treated in UK tax law as a pension, are the
product of the Deceased’s contributions. Thus the nature of the nexus between the
Deceased and the Survivor takes on a particular importance.
78. Fourthly, the sums payable to the Survivor are not related to the children’s
needs or increased by reference to the number of children for whom she is
responsible. Instead, the rate of the WPA is calculated in a way similar to that of a
Category A retirement pension. The Survivor receives a basic pension at a weekly
rate and an additional pension calculated by reference to a surplus created by the
Deceased’s earnings or deemed earnings during his working life: the 1992 Act
sections 39C, 44-45A and 46(2) and Schedule 4A. It is unsurprising that the rules
governing the WPA focus on the nature of the relationship between the Deceased
and the Survivor in determining the Survivor’s entitlement to this contributory
pension.
79. When one pays due regard to these characteristics of the WPA, the reasoning
of the ECtHR in Shackell, which recognises the importance of the status of the
Survivor, is directly relevant and strongly supports the conclusion that the
cohabiting survivor is not analogous to the Survivor who was married to or in a civil
partnership with the Deceased. I see no basis for reaching a different view in relation
to article 14 taken with article 8 than that which the ECtHR has reached in relation
to article 14 taken with A1P1.
80. On a strict analysis the question whether discrimination is objectively
justified does not need to be addressed if one concludes, as I have, that the persons
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are not in an analogous situation. Nonetheless, in view of my disagreement with my
colleagues, it is appropriate to address this question. In so doing, I observe that
considerations which point against the persons being in an analogous situation also
have a bearing on the justification of their being treated differently by the state.
81. It is usual, when addressing justification, to ask whether the difference in
treatment pursues a legitimate aim and whether, in relation to the difference in
treatment, there is “a reasonable relationship of proportionality between the means
employed and the aim sought to be realised”: see for example Yiğit v Turkey (above)
para 67, Stec v United Kingdom (2006) 43 EHRR 47, para 51. The contracting states
are given a certain margin of appreciation in their assessment of whether differences
in otherwise similar situations justify a different treatment in law. In Stec at para 52,
which Lady Hale quotes more fully at para 33, the Grand Chamber stated:
“The scope of this margin will vary according to the
circumstances, the subject matter and the background.”
82. It is not disputed that the promotion of marriage or civil partnerships, by
means of which parties undertake binding legal obligations which may tend to
support the long-term stability of their relationships, is a legitimate aim for the state
to pursue. In the United Kingdom there are a range of measures in the fields of
taxation and social security benefits which promote such legal relationships. These
include the marriage allowance in the context of income tax, the ability of a couple
to transfer assets between each other without a charge to tax in order to take
advantage of income tax and capital gains tax allowances, and the ability of spouses
and civil partners to transfer assets to each other free of inheritance tax and the
entitlement of the surviving spouse or civil partner to inherit the deceased partner’s
inheritance tax allowance if it has not been used. In the field of social security
benefits, entitlement to a survivor’s retirement pension and entitlement to the WPA
depend on the existence of a marriage or a civil partnership. There is thus a range of
rules which confer financial benefits on persons who are or were married or in a
civil partnership. In this context it is of no real significance that the average informed
citizen may not have been aware of the WPA when entering into the legal
obligations which marriage or civil partnership entails. Such a person is likely to
have been aware that there were fiscal and other benefits to such relationships even
if unaware of their details. I am unpersuaded that any ignorance of the WPA calls
into question the rational connection between the measure in question and the
undisputed legitimate aim or the proportionality of the difference of treatment.
83. In this appeal the majority has referred to the test which the ECtHR applies
in social security benefit cases and asked whether the difference in treatment is
“manifestly without reasonable foundation”. I agree that that is the test which should
be applied: R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58;
Page 32
[2016] 1 WLR 4550. The majority concludes that the difference in treatment is
manifestly disproportionate. I cannot agree. In considering, as did the Grand
Chamber in Stec, “the circumstances, the subject matter and background”, the
matters which I have discussed in paras 65-70 above demonstrate that the target of
the contributory benefit, which is the WPA, is the Survivor, if she has responsibility
for children, and if she has not obtained access to an alternative source of income by
marriage, civil partnership or cohabitation, or by means of a retirement pension. The
children benefit only indirectly from the WPA which may terminate while the
Survivor remains responsible for them.
84. The appellant and the Child Poverty Action Group seek to shift the focus
from the Survivor onto the children and argue that the difference in treatment is
largely based on the birth status of the children. This is not so: the WPA is the
Survivor’s benefit. It is of note that the ECtHR rejected a similar argument in
Shackell (in para 2), in which the applicant had argued that her lack of an entitlement
to the WPA discriminated against children because of their illegitimate status. While
there may be good policy reasons for a benefit which is directed at bereaved
children, as the Child Poverty Group submits and commentators in the press have
argued when this appeal was heard, that is not the nature of the WPA. Such questions
of social and economic policy fall within the remit of the democratically elected
legislature and are beyond the remit of the courts. The references to the international
obligations of the United Kingdom in relation to children (para 40 of the majority
judgment) lose their force when attention is paid to the characteristics of the WPA.
85. In my opinion there is no disproportionality in treating a cohabitee survivor
differently from a surviving spouse or civil partner. The WPA falls clearly within
the ambit of A1P1. It falls within the ambit of article 8 only indirectly: by giving the
Survivor a pension, to which the Deceased and not she has contributed, it enables
her not to work or to work fewer hours than she might otherwise have to. The WPA
should not be equated with means-tested benefits which are directed to people’s
needs and are not entitlements resulting from contributions. It does not address
hardship. If the Survivor is in work, the WPA gives her additional income, albeit
subject to taxation. If she is in receipt of means-tested benefits, the payment of the
WPA provides only limited extra income. It will be set against her entitlement to
such benefits, except for the disregard of £10 to which I referred in para 51 above.
86. The provision of the WPA should be seen in the wider context of the United
Kingdom social security system which gives benefits, which, unlike the WPA, are
directed at children. Should the children be in need, there are benefits to support
them. Thus, if the survivor died, the person who took responsibility for the child
would be entitled to child benefit, guardian’s allowance and, depending on his or
her means, child tax credit.
Page 33
87. The respondent also founds on the difficulty of administering the WPA if the
officials charged with its administration had to investigate whether or not the
deceased and the survivor had been cohabiting. This, it was suggested, could also
involve intrusive questioning of a survivor shortly after a bereavement. By contrast
marriage or civil partnership can readily be established by certificates from a public
register. Problems in the administration of the WPA may also arise if a parent, who
has made the necessary contributions, dies leaving children in the care of more than
one former partner. Such difficulty in administration as there may be is a relevant
consideration which can be placed in the balance when the court assesses
proportionality. But the respondent does not need to rely on this additional
consideration as I am satisfied that without it the difference in treatment about which
the appellant complains is proportionate and thus objectively justified.
Conclusion
88. I would have dismissed the appeal.