In re McLaughlin

The Supreme Court held that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, insofar as it requires a claimant to have been married to or in a civil partnership with the deceased in order to qualify for widowed parent’s allowance, unjustifiably discriminated against an unmarried surviving partner and their children in breach of article 14 of the European Convention on Human Rights read with article 8. The Court concluded that the allowance is a contributory, non-means-tested benefit that is a modality of respect for family life and that, on the facts of long cohabitation and shared parenthood in this case, the children’s position was the same as that of children of married parents. The exclusion of unmarried parents could not be justified as a proportionate means of promoting marriage or civil partnership in those circumstances, and a declaration of incompatibility under section 4(2) of the Human Rights Act 1998 was appropriate.

Background and parties: Ms McLaughlin and her long-term partner, Mr Adams, cohabited for 23 years and had four children. Mr Adams died in January 2014 with sufficient National Insurance contributions to have made Ms McLaughlin eligible for bereavement payment and widowed parent’s allowance had they been married. The Department for Communities refused both claims and Ms McLaughlin sought judicial review claiming incompatibility with the ECHR. Her claim succeeded in part before Treacy J (declaration of incompatibility in relation to section 39A and article 8 with article 14) but was reversed by the Northern Ireland Court of Appeal. The appeal came to the Supreme Court.

Nature of the application and relief sought: An application for judicial review seeking a declaration that the relevant legislation was incompatible with the European Convention on Human Rights (article 14 read with article 8 or article 1 of the First Protocol), and relief accordingly under the Human Rights Act 1998.

Issues framed: (i) Whether the denial of widowed parent’s allowance to an unmarried surviving partner falls within the ambit of article 8 and/or A1P1; (ii) whether the surviving unmarried partner and their children are in an analogous situation to married surviving spouses/civil partners and their children; (iii) whether the differential treatment on the ground of marital or birth status amounts to discrimination within article 14; and (iv) if so, whether the differential treatment is objectively and reasonably justified (legitimate aim and proportionality).

Court’s reasoning: The Court concluded that widowed parent’s allowance falls within the ambit of both article 8 (as a modality of respect for family life) and A1P1 (property). The key comparator for the allowance is the family unit caring for children; where the survivor and deceased had co-parented children, the children’s position is materially the same whether or not the parents were married. Although promotion of marriage and civil partnership is a legitimate aim, the court found no proportionate connection between excluding long-term cohabiting parents from a contributory, non-means-tested benefit that compensates for a deceased parent’s contributions and that aim in the circumstances of this case. International obligations and comparative practice in Council of Europe states reinforced a narrow margin of appreciation. The appeal was allowed and a declaration of incompatibility made in respect of section 39A insofar as it excludes surviving unmarried partners.

Procedural posture: Appeal from the Northern Ireland Court of Appeal [2016] NICA 53; first instance decision before Treacy J [2016] NIQB 11 was partially in the claimant’s favour on the widowed parent’s allowance point.

The appeal was allowed. The Supreme Court held that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with article 14 of the ECHR read with article 8 insofar as it precludes entitlement to widowed parent’s allowance by a surviving unmarried partner. The Court reasoned that the allowance is a modality of respect for family life, the children of long-term cohabiting parents are in an analogous position to children of married parents for the purpose of the allowance, and the exclusion of unmarried partners was not a proportionate means of achieving the legitimate aim of promoting marriage or civil partnership in the facts of this case. A declaration of incompatibility under section 4(2) of the Human Rights Act 1998 was made.

First instance: Treacy J, High Court (Northern Ireland) — In the matter of an application by Siobhan McLaughlin for Judicial Review : [2016] NIQB 11 (declaration of incompatibility in relation to section 39A and article 8 with article 14). Court of Appeal (Northern Ireland): [2016] NICA 53 (held legislation not incompatible). Appeal to the UK Supreme Court: [2018] UKSC 48 (appeal allowed).