Hooper & Ors, R (on the application of) v Secretary of State for Work and Pensions

Article 14 may be engaged by unequal gender treatment in bereavement benefits. A claimant becomes a victim when he clearly claims the benefit. An oral claim can suffice if proved. Section 3 of the Human Rights Act 1998 cannot transform clear statutory distinctions between widows and widowers into equal entitlements. In assessing justification for discriminatory pensions, the State bears the burden, although the court allows a very considerable margin in complex social and economic policy. The discrimination in paying pensions to widows aged 45–65 was unjustified after 1995. The State may take reasonable time to implement reform, but not to delay deciding that reform is required. Section 6 may require available extra-statutory powers to be used after the Act came into force. Compensation depends on just satisfaction: £1,000 was awarded for one transitional loss, but no compensation was due where benefits were offset by Income Support or levelling down was appropriate.

Two conjoined appeals involved five widowers. Four challenged their exclusion from widow’s benefits under the Social Security Contributions and Benefits Act 1992. The fifth challenged the widow’s bereavement allowance under the Income and Corporation Taxes Act 1988. The claims relied on articles 8 and 14 of the Convention and the Human Rights Act 1998.

Moses J rejected the argument that section 3 of the Act could extend the statutory benefits to widowers. He found the discrimination concerning Widow’s Payment and Widowed Mother’s Allowance unjustified, but accepted justification for Widow’s Pension until April 2001. He made declarations of incompatibility but refused monetary relief. The appeals raised issues concerning statutory interpretation, victim status, objective justification, delay in reform, Strasbourg settlements, extra-statutory payments, temporal effect and just satisfaction.

1. Statutory interpretation. The court agreed with R v A (No.2) [2001] 2 WLR 1546 and R v Lambert [2001] 3 WLR 206 that section 3 of the Human Rights Act 1998 permits a strained interpretation, including reading down or implying words, but does not authorise amendment where Parliament has clearly chosen a Convention-incompatible limitation. Sections 36 to 38 of the Social Security Contributions and Benefits Act 1992 deliberately distinguished between widows and widowers. Section 6 of the Interpretation Act 1976 could not reverse that intention.
2. Victim status. A widower had to make a clear claim before being directly affected by the refusal of benefit. The precise form was immaterial. A proved oral claim to the appropriate authority, made and rejected, was sufficient. The court applied this conclusion to the appellants, including Mr Withey’s telephone enquiry and Mr Martin’s oral claim.
3. Justification and reform. The court adopted the structured Article 14 approach in Michalak v London Borough of Wandsworth [2002] EWCA Civ 271. Although a very considerable margin was appropriate in complex social and economic policy, the burden remained on the Secretary of State. The evidence failed to justify indiscriminate Widow’s Pension payments after 1995. The reasonable-time principle discussed in Marckx v Belgium and Walden v Liechtenstein did not excuse delay in deciding that reform was necessary.
4. Strasbourg settlements and extra-statutory payments. The Strasbourg-settlement policy did not discriminate between two analogous classes. It imposed one condition on pre-Act victims whose claims had been declared admissible. A friendly settlement was not a test-case determination and did not require equivalent payments to others. Before the Act, the statutory scheme occupied the field and matching payments would have been an abuse of power. After commencement, section 3 preserved, so far as necessary, the Secretary of State’s common-law power to prevent Convention breaches. Sections 6(2)(a) and (b) provided no defence to the failure to make available matching payments.
5. Relief. Section 22(4) barred claims for pre-commencement acts, but victims established before commencement could challenge continuing discrimination without repeating their claims. Under section 8, damages were awarded only where necessary for just satisfaction. Mr Martin received £1,000 plus interest for the failure to pay Widow’s Payment during the transitional period. No award was made for Widowed Mother’s Allowance because Income Support left the appellants no worse off. Mr Naylor received no equivalent pension or bereavement allowance, and no award was made for distress.

• Court of Appeal (Civil Division): allowed the challenge to Moses J’s finding that Widow’s Pension remained objectively justified, held the post-commencement failure to make available matching payments unlawful, and awarded £1,000 plus interest to Mr Martin. The court invited submissions on the consequential order.
• Queen’s Bench Division, Administrative Court: Moses J rejected the section 3 interpretation argument, found discrimination concerning Widow’s Payment and Widowed Mother’s Allowance unjustified, accepted justification for Widow’s Pension until April 2001, made declarations of incompatibility, and refused monetary compensation.