Secretary of State for Work and Pensions v AB

An unmarried surviving partner cannot obtain bereavement support payment under section 30 of the Pensions Act 2014, which confines entitlement to a spouse or civil partner. A declaration that legislation is incompatible with Convention rights does not itself create entitlement to a benefit under unamended domestic legislation.

The human-rights decisions concerning bereavement benefits for unmarried partners in families with dependent children do not determine a claim by a surviving partner without dependent children. For Scots-law marriage by cohabitation with habit and repute, where a pre-existing marriage is a temporary impediment, the legally relevant cohabitation begins only when that impediment is removed.

Ms B claimed bereavement support payment after the death of her long-term unmarried partner. The Secretary of State refused the claim. The First-tier Tribunal allowed Ms B’s appeal, relying on R(Jackson) v SSWP [2020] EWHC (Admin) and, alternatively, on an alleged Scots-law marriage by cohabitation with habit and repute.

The Secretary of State appealed. The Upper Tribunal considered whether the declaration of incompatibility in Jackson could confer a benefit entitlement, whether its reasoning extended to a claimant without dependent children, and whether the deceased’s subsisting marriage until 2016 prevented a qualifying common-law marriage.

1. Appeal allowed. The First-tier Tribunal had erred in law. Its decision was set aside and remade: Ms B was not entitled to bereavement support payment.
2. Section 30 of the Pensions Act 2014 makes entitlement conditional on the deceased being the claimant’s spouse or civil partner. Ms B was not a spouse under that provision.
3. The First-tier Tribunal could not treat R(Jackson) v SSWP [2020] EWHC (Admin) as creating an entitlement. That decision made a declaration of incompatibility, which did not alter domestic benefit legislation or confer a right to payment pending parliamentary remedial action. Further, Jackson, following Re McLaughlin [2018] UKSC 48, concerned an unmarried surviving partner in a family with dependent children. Ms B had no dependent children.
4. The alternative finding of marriage by cohabitation with habit and repute was also erroneous. The deceased lacked capacity to enter such a marriage while his earlier marriage subsisted. Under the approach in Vosilius v Vosilius 2000 SCLR 679, cohabitation relevant to inferring consent began only after his divorce in 2016. That period fell after the abolition, subject to the stated transitional preservation, of that form of marriage by section 3(1) of the Family Law (Scotland) Act 2006.
5. Ms B did not pursue a wider human-rights challenge concerning unmarried partners without dependent children. The Tribunal declined to sist the appeal pending other Upper Tribunal cases and remade the decision to refuse the lower rate of bereavement support payment.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal decision for error of law, and remade it to refuse bereavement support payment: [2022] UKUT 83 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): Allowed Ms B’s appeal against the refusal of bereavement support payment on 12 April 2021, under reference SCO84/20/00660. That decision was set aside.