Bereavement benefit rules discriminatory and incompatible with ECHR rights, rules High Court

7 February 2020

R (Jackson and Simpson) v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) (7 February 2020)

  • Barring families from higher rate bereavement support payment where parents unmarried is discriminatory, and ‘manifestly’ unjustified.
  • Declaration of incompatibility with ECHR rights made under s 4 Human Rights Act 1998.
  • More than 2000 families per year are being excluded from a benefit worth up to £10k

Five children and their two fathers, whose families were refused bereavement benefit after the mother died, have won an important judicial review case in the High Court. Mr Justice Holman has declared that legislation which bars about 2,000 bereaved families per year from claiming higher rate bereavement support payment if the parents were not married is discriminatory, manifestly unjustified, and incompatible with the UK’s obligations under the European Convention on Human Rights.

Jackson and Simpson covers some of the same ground as Re McLaughlin [2018] UKSC 48, [2018] WLR 4250, in which the Supreme Court held that excluding unmarried bereaved partners from widowed parents’ allowance was discriminatory and incompatible with the UK’s obligations under the ECHR. However, the government argued in the new case that higher rate bereavement support payment, which took the place of widowed parents’ allowance in 2017, was a different kind of benefit and that unlike widowed parents’ allowance, the higher rate bereavement support payment was not supposed to be ‘for’ children (and therefore that it was reasonable for them to limit entitlement based on parents’ marital status).

Holman J rejects the government’s argument that higher rate bereavement support payment is not for children: ‘where the state may pay over twice as much to a person who has a dependent child than to one who does not, it is, to my mind, fanciful to suggest that part, if not all, that extra sum is not intended to benefit, and does not usually benefit, the child or children.’ [§28]

The judge also rejects the reasons advanced for the discrimination between children of married and unmarried parents:

[51] … To say that something has always been done in a certain way is, of itself, no justifying reason at all, and risks failing to keep pace with societal change.

[52] … the policy argument and legitimate aim of encouraging and promoting marriage or civil partnership is no different and no stronger in the present case than it was in McLaughlin. It did not sway the Supreme Court, and it seems to me a wholly unconvincing reason for discriminating in the case of children and entitlement to HRBSP. The child cannot make the choice between marriage and cohabitation…

[53] … the SSWP argues that the fact of marriage or civil partnership is clear cut and susceptible of clear proof from registration and production of a certificate. The circumstances of cohabitation may be much less clear cut and far harder for the state to verify… But the point of the difficulty and sensitivity of administration, especially at a time of bereavement, was considered and expressly rejected by the majority in McLaughlin…

[58] … In my view there is manifestly no reasonable justification whatsoever for giving the additional “cash boost” (the extra £5,500 maximum) which it is recognised that families with a child or children need after the death of a parent and which the HRBSP provides to families based on marriage or civil partnership, yet denying it to those based on cohabitation. The impact of the death upon the child or children, and the financial and other needs of the children, are precisely the same…

The Government has not yet said how it will respond to the judgment, or whether it intends to seek permission to appeal. Indeed, it has not yet announced how it proposes to respond to McLaughlin, which was decided in mid 2018.

Tom Royston, led by Helen Mountfield QC and instructed by Child Poverty Action Group, acted for the Claimants. Tom and Helen also acted for CPAG intervening in McLaughlin.

The case has been published on Bailii here.

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