In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)

Whether married and unmarried bereaved parents are in analogous situations under article 14 depends on the purpose of the benefit concerned. A contributory allowance payable only where the survivor cares for children is both a property interest and a means by which the state demonstrates respect for family life.

Unmarried status is a protected status. Although promoting marriage and civil partnership is legitimate, withholding such an allowance from a surviving unmarried co-parent is disproportionate where parental responsibilities and the family’s financial loss are the same. A declaration of incompatibility may be made where legislation will inevitably operate incompatibly in a legally significant number of cases. It need not operate incompatibly in every or nearly every case.

The appellant and her partner lived together for 23 years and had four children. Her partner had made sufficient National Insurance contributions for her to receive widowed parent’s allowance had they been married, but the claim was refused because they were unmarried.

In In the matter of an application by Siobhan McLaughlin for Judicial Review [2016] NIQB 11, the High Court declared section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 incompatible with articles 8 and 14 insofar as eligibility depended on marital status. It rejected the separate challenge concerning bereavement payment. The Court of Appeal unanimously reversed the finding of incompatibility: [2016] NICA 53.

The issue before the Supreme Court was whether the marriage or civil-partnership condition for widowed parent’s allowance unjustifiably discriminated against the surviving partner or children contrary to article 14, read with article 8 or Article 1 of the First Protocol.

1. Appeal allowed by a majority of four to one. Lady Hale, Lord Mance, Lord Kerr and Lady Black held that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 was incompatible with article 14, read with article 8, insofar as it precluded any entitlement to widowed parent’s allowance for a surviving unmarried partner. Lord Hodge dissented.

2. Article 14 does not require a breach of a substantive Convention right. The denial of a contributory social-security benefit fell within Article 1 of the First Protocol. Widowed parent’s allowance also fell within article 8 because it was conditional upon responsibility for children and was a means by which the state demonstrated respect for children and family life. Even if article 8 required more than a tenuous connection with its core values, that requirement was satisfied.

3. Comparability had to be assessed in the context of the measure and its purpose. The allowance existed because the survivor cared for children for whom the deceased or survivor had been responsible. In that respect, unmarried co-parents and married parents were analogous because the children’s position, the parental responsibilities and the financial loss caused by death were the same. Being unmarried was an “other status” under article 14.

4. Shackell v United Kingdom was not followed. Its approach failed to address the child-related purpose and effect of widowed parent’s allowance. Decisions recognising the special legal status of marriage in inheritance-tax or other contexts did not determine comparability for this child-related benefit.

5. Promoting marriage and civil partnership was a legitimate aim, but the means had to be rationally connected and proportionate to that aim. Denying the allowance to this surviving co-parent was manifestly disproportionate. The benefit sought to diminish the financial loss suffered by a family with children following a parent’s death, and that loss did not depend on whether the parents had married. The conclusion was reinforced by international obligations concerning children’s best interests, social security and freedom from discrimination, and by the European practice concerning survivor benefits.

6. The exclusion would not necessarily be incompatible in every possible family arrangement. It was sufficient that it would inevitably operate incompatibly in a legally significant number of cases. A declaration under section 4(2) of the Human Rights Act 1998 did not change the law; whether and how to amend it remained for the legislature. The Court expressed no conclusion about the replacement scheme applying to later deaths.

7. Lord Hodge dissenting: the allowance was a taxable, contributory, survivor-focused pension rather than a benefit belonging to children. Marriage and civil partnership supplied the legal nexus permitting the survivor to benefit from the deceased’s contributions. He considered unmarried and married survivors not analogous and, alternatively, regarded the distinction as objectively justified under the “manifestly without reasonable foundation” standard.

1. United Kingdom Supreme Court: By a majority of four to one, allowed the appeal from [2016] NICA 53 and declared section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 incompatible with article 14, read with article 8, to the stated extent.
2. Court of Appeal in Northern Ireland: Unanimously held that the legislation was not incompatible with article 14 read with either article 8 or Article 1 of the First Protocol: [2016] NICA 53.
3. High Court of Justice in Northern Ireland: Partly allowed the judicial-review claim and declared section 39A(1) incompatible with articles 8 and 14 insofar as eligibility for widowed parent’s allowance depended on marital status. It rejected the challenge concerning bereavement payment: [2016] NIQB 11.