The claimants were two adults and their children by their respective unmarried cohabiting partners. Each of the adult claimants, following the death of his partner, applied for a bereavement support payment pursuant to section 30 of the Pensions Act 2014 and the Bereavement Support Payment Regulations 2017 made thereunder. In each case the claim was refused since, by section 30(1)(a) of the 2014 Act, such a payment was available only to a spouse or civil partner of the deceased and not to an unmarried cohabitee. The claimants sought judicial review on the ground that, in so far as a higher rate bereavement support payment under 30(4)(a) and regulation 4 of the 217 Regulations might be payable to a surviving parent with a dependent child where his spouse or civil partner died, but not where his unmarried cohabitee or non-civil partner died, the legislation unjustifiably discriminated against the surviving parent and/or the child or children in a cohabiting relationship, on the ground of the non-married status, or, in the case of the child, on the ground of birth, contrary to article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. They submitted that there was no material distinction in that regard between higher rate bereavement support payment and widowed parent’s allowance, which had been found to be unlawful in so far as it precluded any entitlement by a surviving unmarried partner of the deceased, and they sought a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998.
On the claim—
Held, claim allowed. Declaration of incompatibility granted. While there were differences between higher rate bereavement support payment and widowed parent’s allowance, both payments were intended to benefit and were “for” the relevant child or children. The circumstances fell within the ambit of article 1 of the First Protocol to the Convention and also within article 8, since, like widowed parent’s allowance, the payment was a positive measure which was a modality of the rights guaranteed by article 8, intended at least in part to assist or benefit children at a time when family life might be under greatest strain. There was a difference of treatment between persons who were in an analogous situation, the comparison for that purpose being between a surviving cohabitee with a dependent child and a surviving spouse or civil partner with a dependent child. The situation of the children was the same in either case and, in the case of a payment which benefited children, the situations of marriage and cohabitation were analogous. Accordingly, there was discrimination on the ground of the “other status”, for the purposes of article 14, of not being married or in a civil partnership, and, in the case of the children, in relation to their status of not being the children of parents who were married to each other or in a civil partnership. Since the discrimination was not confined to the present claimants but would arise in a legally significant number of cases, it required to be justified. While recognising that states had a margin of appreciation to treat the status of marriage and civil partnership differently and more favourably, including within the realm of social policy and social security, and that the court should be slow to intervene, the difference in treatment was manifestly without reasonable foundation and thus was not justified. The facts that the national insurance system had always been based on legal marriage and now also civil partnership, that couples had a choice whether or not to marry, and that marriage or civil partnership was clear-cut and susceptible of clear proof from registration and production of a certificate were insufficient to justify the difference in treatment. In so far as higher rate bereavement support payment was based on a recognised need for greater support when there were dependent children, that need could not be different according to whether the parents were married or not (paras 28–29, 31–34, 37–47, 51–58 ,60, 66).
Helen Mountfield QC and Tom Royston (instructed by Child Poverty Action Group) for the claimants.
Julian Milford and Ben Mitchell (instructed by Treasury Solicitor) for the Secretary of State.