In the matter of an application by Siobhan Mclaughlin for Judicial Review (Northern Ireland)

Cite as:[2018] UKSC 48
Hand-down Date:August 30, 2018
 
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[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 Donal Lunny BL Laura Curran BL (Instructed by Departmental Solicitor's Office, Department of

Finance) Laura McMahon

(Instructed by Francis Hanna & Co Solicitors)

1 st Intervener

(Child Poverty Action Group)

Helen Mountfield QC Tom Royston (Instructed by Herbert Smith Freehills LLP) 2nd Intervener (National Children's Bureau)

Stephen Broach (Instructed by Irwin Mitchell LLP) 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.

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    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...

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