Langford v The Secretary of State for Defence

A survivor-benefit scheme which extends protection to unmarried partners in stable, exclusive and financially dependent relationships must not impose an unjustified further exclusion based solely on an undissolved marriage to a third party. The scheme’s aim is equality of benefit between married and qualifying unmarried partners. A condition used to identify beneficiaries is a means, not the aim itself.

In assessing justification for differential treatment in a benefits scheme, the court may apply the manifestly without reasonable foundation test. It must nevertheless examine the state’s reasons proactively. Unsupported, retrospective assertions of parity, cost, administrative convenience or prevention of double recovery will not justify a broad exclusion where a more tailored measure could address the concern.

The appellant had lived for 15 years in a relationship akin to marriage with a serving RAF officer who died in service. She remained married, but estranged, from her husband. Her claim for survivor benefits under the Armed Forces (Compensation Scheme) Order 2011 was rejected because a surviving adult dependant could not be married to another person.

The First-tier Tribunal dismissed her appeal and the Upper Tribunal upheld that decision. In separate proceedings concerning the Armed Forces Pension Scheme, the High Court had dismissed an analogous claim: [2015] EWHC 875 (Ch). The central issue before the Court of Appeal was whether the exclusion breached article 14, read with article 1 of Protocol 1, of the ECHR and, if so, whether it was justified and proportionate.

1. Appeal allowed. The exclusion of a long-term unmarried partner from survivor benefits because she remained married to an estranged third party was unlawful discrimination contrary to article 14 read with A1P1.

2. The appropriate comparison was between the appellant and an unmarried surviving partner who satisfied the requirements of a substantial, exclusive and financially dependent relationship but was not married to anyone else. The Scheme’s objective was to provide equal benefits to married partners and qualifying unmarried partners. The requirement that an unmarried partner must not be married to a third party was merely a means of defining the beneficiary class; it was not an aim capable of justifying the resulting difference in treatment. The court applied the distinction between aim and means drawn from In re Brewster [2017] UKSC 8.

3. Assuming that the manifestly without reasonable foundation test applied, the court followed the practical approach stated in R (DA) v Secretary of State for Work and Pensions [2019] 1 WLR 3289. The court had to examine the Minister’s reasons proactively. If it was not persuaded that the reasons had a reasonable foundation, it would be fanciful to dismiss the claim on the basis that they were not manifestly unreasonable.

4. Parity was not achieved by importing legal preconditions of marriage into an unmarried-partner scheme. It was achieved by testing whether the relationship was substantial, exclusive and financially dependent in fact. The asserted risks of double recovery, increased cost and administrative inconvenience lacked supporting evidence. In any event, a rule requiring evidence that an estranged spouse was not a member of a relevant public-service scheme would be less intrusive than a blanket exclusion.

5. The court also refused the Minister permission to adduce late fresh evidence. It was of marginal assistance, was offered after an unexplained failure to advance the additional grounds through a Respondent’s Notice, and would improperly expand a second appeal which had previously raised narrow legal issues.

• Court of Appeal (Civil Division): Allowed the appeal and held that the exclusionary rule was unjustified discrimination.
• Upper Tribunal (Administrative Appeals Chamber), 26 October 2016: Dismissed the appellant’s appeal from the First-tier Tribunal.
• First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber), 19 February 2014: Dismissed the appellant’s appeal against the Minister’s refusal of survivor benefits.