Upper Tribunal (Administrative Appeals Chamber), October 26, 2016, [2016] UKUT 482 (AAC)

Resolution Date:October 26, 2016
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:JL v Secretary of State for Defence (AFCS) (War pensions and armed forces compensation : Armed Forces Compensation Scheme)
 
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JL v Secretary of State for Defence

[2016] UKUT 0482 (AAC)

1

CAF/2565/2015

IN THE UPPER TRIBUNAL Case No. CAF/2565/2015

ADMINISTRATIVE APPEALS CHAMBER

Before: Mr E Mitchell, Judge of the Upper Tribunal

Decision: The decision of the First-tier Tribunal (ref. AFCS/00103/2014) taken on 19 February 2014, involved no material error on a point of law. Its decision is not set aside and this appeal is DISMISSED.

Hearing: 20 July 2016 at Field House, Bream's Buildings, London

Attendances: Mrs Langford represented herself (informally assisted by Mr Wright and Ms Bamford, law students).

For the Respondent Secretary of State, Mr T Buley, of counsel, instructed by the Government Legal Department.

Introduction

  1. Despite my sympathy for Mrs Langford, not diminished in any way by her dignified conduct of these proceedings, I have to dismiss her appeal. Since she was married to another at the date on which Air Commodore Green died, she is not entitled to the benefits granted to a surviving adult dependant by the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (``2011 Order'').

    Background

  2. Mrs Langford was the long-term partner of Air Commodore Green who died unexpectedly on 17 May 2011. Mrs Langford made a claim for benefits under the 2011 Order on 20 November 2013. The Secretary of State refused her claim on 8th January 2014. Mrs Langford appealed to the First-tier Tribunal

  3. The First-tier Tribunal dismissed Mrs Langford's appeal on 19 September 2014. It found that, at the date of the Commodore's death, she was married to Mr Langford but ``they had been separated for many years''. Since Mrs Langford was married to someone else, she was prevented from marrying Air Commodore Green and could not therefore satisfy the 2011 Order's definition of surviving adult dependant.

  4. The First-tier Tribunal rejected Mrs Langford's argument that the 2011 Order, as construed by the Secretary of State, resulted in discrimination contrary to Article 14 of the European Convention on Human Rights. She argued discrimination on two grounds, age and marital status.

  5. In relation to marital status, the Tribunal said Mrs Langford relied on the Court of Appeal's decision in Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 29 to argue marital status was a relevant status under Article 14. However, according to the Tribunal, Ratcliffe concerned pre-2005 rules and the compensation scheme was altered in response to the decision to provide for approximately equal treatment of married and unmarried partners. In Ratcliffe, Hooper LJ held ``where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that discrimination is not justified''. Mrs Langford had not supplied any evidence of ``suspect grounds'' for the provision made for surviving adult dependants in the 2011 Order.

  6. In relation to age, Mrs Langford had argued the provision made in the 2011 Order ``discriminates indirectly against older couples because they are more likely to be in a relationship where there is a subsisting marriage in the background to be a person from whom one partner is estranged or separated''. Mrs Langford's argument was rejected because she provided no ``statistical evidence to support her contention nor to show that that the discrimination she complains of is `suspect'''.

    Legal Framework

  7. Article 29(1) of the 2011 Order provides for benefits payable for the death of a member. These include:

    ``(a) a survivor's guaranteed income payment payable until death to a surviving spouse, civil partner or surviving adult dependant;

    (b) a bereavement grant payable to a surviving spouse, civil partner, surviving adult dependant, or eligible child''.

  8. Articles 29(2) gives the Secretary of State power to withhold benefit where the member and the surviving spouse married less than six months before the death of the deceased. There is a similar power in respect of civil partners in Article 29(3).

  9. ``Surviving adult dependant'' is defined by Article 30:

    ``A person is a surviving adult dependant in relation to a deceased member or former member if, at the time of the deceased's death--

    (a) the person and the deceased were cohabiting as partners in a substantial and exclusive relationship;

    (b) the deceased leaves no surviving spouse or civil partner;

    (c) the person and the deceased were not prevented from marrying or forming a civil partnership; and

    (d) either the person was financially dependent on the deceased or they were financially interdependent.''

  10. Those are cumulative conditions (as shown by the use of ``and'' before the final condition) and so, where the person and the deceased were prevented from marrying, the person cannot be a surviving adult dependant for the purposes of the 2011 Order.

  11. Part 2 of Schedule 1 to the 2011 Order provides that ``a relationship is not an exclusive relationship if (a) one or both of the parties to the relationship is married to...someone other than the other party to the relationship...''....

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