Cooper v Secretary of State for Work and Pensions

Gender-specific statutory provisions for widow’s benefits could not be construed in gender-neutral terms to extend equivalent entitlement to men. The resulting difference in treatment was objectively justified under European Convention on Human Rights Article 14, applying the House of Lords’ decision in Hooper [2005] UKHL 29. The court also accepted that the arrangements were not unlawful under section 6(1) of the Human Rights Act 1998 because the section 6(2) defences applied. Pending group litigation did not justify postponing the decision on whether there was an arguable error of law. The application for permission to appeal was refused.

The claimant’s wife died in 1994. His claim for widowed mother’s allowance was disallowed because he was not a woman. After bereavement benefits were introduced, he received widowed parent’s allowance, which ended when his child benefit ceased in September 2003. He then claimed bereavement allowance or widow’s pension. A tribunal dismissed his appeal, and the Social Security Commissioner held that the tribunal had made no error of law. The Commissioner refused leave to appeal against that decision. The central issue before the Court of Appeal was whether the Commissioner’s decision was arguably erroneous in law, particularly in light of Hooper and pending group litigation.

Application refused. Lord Justice Laws held that the claimant’s case could not succeed in the light of the House of Lords’ decision in Hooper [2005] UKHL 29.

1. The court had to decide whether the Social Security Commissioner had arguably made an error of law. A pending group action could not justify postponement. Its eventual outcome might affect the future, but could not affect whether the Commissioner’s decision was arguably erroneous when made.
2. The court accepted the construction adopted by the Commissioner. Sections 36 to 38 of the Social Security Contributions and Benefits Act 1992, which referred to women whose husbands had died, could not be read in gender-neutral terms so as to extend the statutory entitlement to men. The Court of Appeal’s earlier conclusion in R (Hooper and Others) v The Secretary of State for Work and Pensions (2003) 1 WLR 2623 had not been challenged in the House of Lords.
3. The House of Lords had held that preserving widow’s pension entitlement for women whose husbands had died before 9 April 2001, without equivalent entitlement for men, was objectively justified. The court treated Lord Hoffmann’s reasoning as identifying the historical economic disadvantage of older widows and the absence of a social or economic justification for extending widower’s pension to men below pensionable age. The precise point at which special treatment ceased to be justified was a social and political question within Parliament’s competence.
4. The House of Lords had further held that payment of widow’s pension and widowed mother’s allowance to women, but not men, was not unlawful under section 6(1) of the Human Rights Act 1998, because the defences in section 6(2) excluded the application of section 6(1).

The Commissioner’s decision therefore disclosed no arguable error of law. The formal order was: application refused.

• Court of Appeal (Civil Division) — On 17 July 2006, Lord Justice Laws refused the claimant’s application for permission to appeal from the Social Security Commissioner.
• Social Security Commissioner — On 4 April 2006, Commissioner Lloyd-Davies refused leave to appeal against his decision of 20 December 2005.
• Social Security Commissioner — On 20 December 2005, the Commissioner held that the tribunal’s decision was not erroneous in law and dismissed the claimant’s appeal.
• Tribunal — On 25 May 2004, the tribunal disallowed the claimant’s appeal against the cessation of his widowed parent’s allowance.