Jackson & Ors v The Secretary of State for Work And Pensions

Higher-rate bereavement support payment may not be restricted to surviving spouses and civil partners where the payment is intended, at least in part, to support dependent children. For Article 14 purposes, children of married or civil-partnered parents and children of cohabiting parents may be in an analogous situation. The difference in treatment is therefore discriminatory on grounds of marital or civil-partner status, and potentially birth. In the context of welfare benefits, the relevant justification test is whether the discrimination is manifestly without reasonable foundation. Administrative difficulty, the established structure of national insurance, the promotion of marriage and the availability of other benefits did not justify excluding cohabiting families from the higher rate.

The claimants were two surviving fathers and their dependent children. Each father had lived for many years with the mother of his children, but neither relationship was formalised by marriage or civil partnership. After each mother died, the fathers were refused higher-rate bereavement support payment because section 30(1)(a) of the Pensions Act 2014 and regulation 4 of the Bereavement Support Payment Regulations 2017 limited entitlement to a surviving spouse or civil partner.

The claimants sought a declaration of incompatibility under section 4 of the Human Rights Act 1998. The central issue was whether the exclusion of surviving cohabitees with dependent children was incompatible with Article 14 of the Convention, read with Article 8.

1. Ambit and analogous situation. Higher-rate bereavement support payment fell within the ambit of Article 8 as well as Article 1 of the First Protocol. Its higher rate was intended, at least in part, to assist children following the death of a parent. Children in cohabiting families were in a relevantly similar situation to children whose parents were married or civil partners.
2. Discrimination. The legislation treated surviving cohabitees and their children less favourably solely because the parents were not married or in a civil partnership. The exclusion affected a legally significant number of families and was not merely an isolated hard case.
3. Justification. The appropriate question was whether the difference in treatment was manifestly without reasonable foundation. The government’s reliance on the traditional marriage-based structure of national insurance, the policy of encouraging marriage, the evidential and administrative difficulties of proving cohabitation, and the availability of universal credit or other benefits did not provide reasonable justification. Those matters were insufficient where the benefit expressly recognised the greater support needed by families with dependent children.
4. Declaration. The court declared under section 4 of the Human Rights Act 1998 that section 30(4)(a) of the Pensions Act 2014, read with section 30(1), was incompatible with Article 14 read with Article 8 insofar as it empowered regulations to provide the higher rate only where the claimant was the deceased’s spouse or civil partner.