Supreme Court declares law denying unmarried people widowed parent’s allowance incompatible with Convention rights

30 August 2018

In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48, the UK’s Supreme Court, which sat for the first time in Northern Ireland to hear the appeal, has ruled against the government and declared that a law preventing unmarried people from claiming widowed parent’s allowance (WPA) is incompatible with their fundamental rights protected by the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR).

Parliament will now have to consider whether to amend the law to make it compatible with the ECHR rights of unmarried survivors.

Allowing the appeal of Ms McLaughlin, who was in a long term unmarried relationship with her children’s father before his death, the UK’s highest court decided that since WPA ‘exists because of the responsibilities of the deceased and the survivor towards their children’ [§39], which exist regardless of the adults’ marital status, it is unjustified to deprive children of unmarried parents of the advantages of being in a household receiving WPA.

The case is important because:

  • It is likely that Parliament will now legislate to create new rights to family bereavement benefits giving greater protection to unmarried survivors with children;
  • The Court declined to follow an earlier decision of the European Court of Human Rights, which had rejected the argument that WPA was unlawfully discriminatory [§49];
  • WPA is found to be in the ambit of both Article 1 of the First Protocol and Article 8 of the ECHR [§23], and the Court criticises the tendency of domestic courts to quibble with claims that those articles are applicable in discrimination cases [§20: ‘It is fair to say that the English courts have made rather heavy weather of the ambit point’]; and
  • The judgment makes innovative use of a range of international human rights instruments to inform its conclusions. In particular, it notes the commitment to bereavement benefits for adults and children in ILO Social Security (Minimum Standards) Convention 1952 [§5], and the right of ‘every child… to benefit from social security’ in Article 26 UNCRC [§40].

The Court ruled four to one in favour of the appellant, with the majority judgment written by the Court’s President Baroness Hale. Lord Mance writes a concurring judgment, with which Baroness Hale and Lord Kerr agree. Lord Hodge would have dismissed the appeal: in his view the connection between the appellant’s children and WPA was too weak for the argument of the majority to succeed.

Garden Court North Chambers’ Tom Royston, led by Helen Mountfield QC and instructed by Herbert Smith Freehills, acted for the Child Poverty Action Group, which intervened in the appeal.

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