Daniel Richard Jwanczuk v Secretary of State for Work and Pensions

Under the Abbott v Philbin rule, a court should ordinarily follow an appellate decision from another UK jurisdiction on an identical issue concerning identically worded UK legislation enacted for a uniform system. Departure requires a compelling reason, at least clear wrongness; mere disagreement, different argument or Convention context is insufficient. In social-security discrimination cases, inability to work throughout a deceased person’s working life because of disability can constitute an objectively determinable “other status” under article 14. Applying the Bank Mellat proportionality questions, the contribution condition was not justified in that class. Administrative simplicity and the contributory principle did not outweigh the discriminatory impact. Section 3 of the Human Rights Act permitted the disability exception to be read into the legislation.

The claimant’s wife had severe congenital muscular dystrophy and had never paid national insurance contributions. His claim for bereavement support payment was refused because the contribution condition in the Pensions Act 2014 was not met.

Kerr J upheld the judicial review claim in [2022] EWHC 2298 (Admin), declaring that the condition could be treated as met where the deceased had been unable to work throughout her working life because of disability. He followed the Northern Ireland Court of Appeal’s decision in O’Donnell. The Secretary of State appealed on the weight to be given to O’Donnell, the existence of an article 14 status, justification and the availability of a section 3 remedy.

1. The appeal was dismissed. Underhill LJ gave the leading judgment, with Laing LJ and Falk LJ agreeing.
2. The Abbott v Philbin rule is a rule of practice. Where an appellate court in Scotland or Northern Ireland has decided an identical issue concerning identically worded UK legislation intended to operate uniformly, a later court should follow that decision unless there is a compelling reason to depart. The minimum requirement is that the earlier decision is clearly wrong. Mere disagreement, a different presentation of the case, or the Convention context does not suffice. A High Court judge should be particularly slow to depart from such a decision.
3. “Inability to work” throughout the deceased’s working life because of disability is capable of constituting an objectively determinable “other status” for article 14 purposes. The necessary assessment may involve evaluating objectively established facts. The existence of matters of degree does not create the conceptual uncertainty identified in MOC.
4. The legitimate aims of the contribution condition, including the contributory principle, administrative simplicity and certainty, were rationally connected to it. However, following O’Donnell, the Secretary of State had not shown that applying the condition to spouses of people unable to work through disability was justified. The absence of a simple proxy and the administrative burden were insufficient to outweigh the discriminatory effect. The court expressed doubts about the reasoning but found no compelling reason to depart from O’Donnell.
5. The reference in O’Donnell to the UNCRC and UNCRPD was obiter. The finding of Thlimmenos discrimination was established by the preceding reasoning independently of those treaties.
6. The disability exception could be read into section 31 under section 3 of the Human Rights Act 1998. Although the Court considered the issue less straightforward than the lower courts had suggested, O’Donnell had decided as a matter of ratio that the statutory language could be read down, and no compelling reason justified a different conclusion.

• Court of Appeal (Civil Division): Appeal dismissed.
• High Court of Justice, King’s Bench Division, Administrative Court: Kerr J upheld the claim and granted a declaration in [2022] EWHC 2298 (Admin), also reported at [2023] 1 WLR 711.