THE QUEEN (on the application of) DANIEL RICHARD JWANCZUK v SECRETARY OF STATE FOR WORK AND PENSIONS

The exclusion of a surviving spouse from bereavement support payment solely because the deceased spouse was unable, through severe disability, to make the required national insurance contributions was incompatible with article 14 of the ECHR read with A1P1. The contribution condition pursued legitimate aims and was rationally connected to them. However, its application to people who had been unable to work throughout their working lives was manifestly without reasonable foundation. A less intrusive exception could be created without undermining the contributory principle or administrative simplicity. The court followed the Northern Ireland Court of Appeal’s reasoning in O’Donnell and granted equivalent relief.

The claimant’s wife had severe congenital disabilities and had not paid sufficient national insurance contributions to satisfy the contribution condition for bereavement support payment under the Pensions Act 2014. The Secretary of State refused the claimant’s application and maintained that decision on mandatory reconsideration.

The claimant challenged the refusal by judicial review while an appeal remained stayed before the First-tier Tribunal. He relied principally on O’Donnell v Department for Communities, in which the Northern Ireland Court of Appeal held materially equivalent provisions incompatible with article 14 read with article 8 and A1P1. The central issues were whether the claimant had a relevant article 14 status, whether the exclusion involved unjustified discriminatory treatment, and what remedy was available.

1. The claim succeeded. The court made a declaration in the same terms as that made in O’Donnell v Department for Communities. Any factual dispute about whether the deceased had been able to work was left to the First-tier Tribunal.
2. The decision in O’Donnell was not formally binding, but was entitled to the utmost respect. Human rights should, if possible, have the same content throughout the United Kingdom. The present case was materially indistinguishable and the court was not persuaded that O’Donnell was clearly wrong.
3. The claimant possessed the relevant article 14 status as the spouse of a deceased person who was severely disabled so that she was unable to work and therefore unable to satisfy the contribution condition. Denying him payment treated him alike with spouses whose deceased partners were not prevented by disability from satisfying the condition, although their situations were relevantly different.
4. The legitimate aims were to reward work, simplify administration, reduce cost and complexity, and promote certainty. The contribution condition was rationally connected to those aims. Applying the third and fourth questions in Bank Mellat v HM Treasury, however, the exclusion of those unable to work throughout their working lives was manifestly without reasonable foundation. An exception for that class would be less intrusive and would not undermine the contributory principle.
5. The court declined to determine whether payment of bereavement support payment fell within article 8, since it plainly fell within A1P1 and the justification analysis would not differ. The observations in O’Donnell concerning breaches of the UNCRC and UNCRPD were obiter and should not have been relied upon, although they did not affect the result.
6. Reading the contribution condition in accordance with section 3 of the Human Rights Act 1998 was permissible. The existing exception for disabling injury or disease during employment showed that the additional exception did not contradict the essentials of the legislative scheme.

The judgment was a first-instance judicial review. An appeal to the First-tier Tribunal remained stayed. The court granted equivalent declaratory relief to that granted by the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36.