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

The Court of Appeal considered challenges by four widowers to a statutory regime that had provided widow's benefits to women but not men, relying on the Human Rights Act 1998 and the European Convention on Human Rights. Key legal principles applied were: the interpretative duty under section 3 HRA (but not to the point of rewriting clear gender‑specific provisions); the victim requirement under section 7 HRA mirroring Strasbourg case law (a claimant becomes a "victim" once he makes a clear claim, oral or written, that is rejected); Article 14 read with Article 8 protects against unjustified gender discrimination in social security; and the State has a margin of appreciation but must show objective justification for continued differential treatment.

The court held that sections of the Social Security Contributions and Benefits Act 1992 conferring widow's payment and widowed mother's allowance on women but not men were incompatible with Convention rights and could not be read under section 3 HRA so as to include men. It rejected a requirement that claims be in writing as a precondition of "victim" status. The court allowed the appellants' complaints that the Secretary of State had not shown objective justification for continuing to pay Widows' Pensions after about 1995 and rejected the argument that the Secretary of State could rely on section 6(2) HRA to avoid liability for refusing extra‑statutory payments. Remedies were confined: the court awarded a monetary sum of £1,000 (plus interest) to one appellant (Mr Martin) for a lost lump sum, rejected most claims for additional payments because claimants had not suffered pecuniary loss, and declined to order mandatory extra‑statutory payments across the board.

This appeal comprised conjoined challenges by four widowers (Hooper, Withey, Martin and Naylor) that they had been discriminated against by a statutory regime under which widow's benefits were available to women but not men. The applicants relied on the Human Rights Act 1998 and the Convention (notably Article 14 read with Article 8, and Article 1 of Protocol No.1 in the tax case described in the judgment). Their claims raised multiple issues: (i) whether section 3 HRA permitted courts to read gendered statutory provisions as including men; (ii) when a widower becomes a "victim" for Convention purposes and thus can sue under section 7 HRA; (iii) whether continued payment of Widow's Pension to older widows up to 2001 could be objectively justified; (iv) whether there is a "Walden"‑type period of grace for states to remedy identified Convention breaches; (v) whether settling claims at Strasbourg but not making extra‑statutory payments domestically amounted to separate unlawful discrimination; (vi) whether domestic public law principles required equivalent treatment for settled Strasbourg claimants; (vii) whether section 6(2) HRA or common law/pre‑existing Crown powers insulated the Secretary of State from liability or obliged him to make extra‑statutory payments; (viii) temporality and the effect of section 22 HRA on claims arising before 2 October 2000; and (ix) relief and just satisfaction.

• Procedural posture: appeal from Moses J in the Administrative Court (Queen's Bench Division), dealing with test cases. The hearing began October 2002 and concluded March 2003.
• Key factual matrix: earlier statutory regime (SSCB Act 1992) afforded Widow's Payment (s.36), Widowed Mother's Allowance (s.37) and Widow's Pension (s.38) to women only; Welfare Reform and Pensions Act 1999 introduced a new, gender‑neutral bereavement regime from 9 April 2001 while preserving existing rights for those already in receipt.
• Court's reasoning in brief: section 3 HRA cannot be used to produce an interpretation that contradicts express gendered provisions; an oral claim rejected by the competent authority may suffice to make a widower a "victim"; statistics and policy evidence led the court to conclude that by about 1995 objective justification for indiscriminate payment of long‑term Widow's Pensions to women had ceased and the State had delayed unacceptably in remedying that discrimination; the Walden principle (allowing time to implement reforms) does not displace the court's scrutiny of whether objective justification existed, and does not operate in the same manner in the UK given the HRA scheme; the Secretary of State could not rely on section 6(2) to avoid the duty not to act incompatibly with Convention rights after the HRA came into force; however, constitutional constraints on public expenditure and the nature of relief available under the HRA meant the court declined to order mandatory extra‑statutory schemes and awarded limited damages where pecuniary loss was demonstrated.

Appeal allowed in part. The court upheld that the widow‑only statutory benefits (Widow's Payment and Widowed Mother's Allowance) involved unlawful discrimination and that section 3 HRA could not be used to read those provisions so as to include men. It reversed Moses J's finding that Widow's Pension remained objectively justified until April 2001, concluding the Secretary of State had failed to justify continued indiscriminate long‑term pensions to widows after about 1995. The court held that section 6(2) HRA did not provide a defence to the Secretary of State in respect of failing to make extra‑statutory payments after the HRA came into force, but declined to make a mandatory order for an extra‑statutory scheme; limited damages were awarded where pecuniary loss was shown (notably £1,000 to Mr Martin).

On appeal from the Queen's Bench Division (Administrative Court), Moses J. The appeal was heard in the Court of Appeal (Civ Div) and decided on 18 June 2003. Neutral citation [2003] EWCA Civ 813.