Daniel Richard Jwanczuk v Secretary of State for Work and Pensions

The Court of Appeal dismissed the Secretary of State’s appeal against Kerr J’s declaration that the contribution condition in section 31 of the Pensions Act 2014 could be read so as to treat the condition as met where the deceased spouse "was unable to comply with section 31(1) throughout her working life due to disability". The court applied article 14 ECHR (prohibition of discrimination) within the ambit of A1P1 and followed the reasoning of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36. The court accepted that the claimant’s situation constituted an "other status" (an associative status based on the deceased’s lifelong inability to work), found that similarly situated non-disabled persons were treated differently (Thlimmenos-type discrimination), and held that the application of the contribution condition in such cases was not justified. The court also held that, in the circumstances, a reading-in under section 3 of the Human Rights Act 1998 was possible and compatible with the statutory scheme.

The claimant sought bereavement support payment (BSP) after his wife, who had never paid national insurance contributions because she had been unable to work throughout her working life due to disability, died. The Secretary of State refused BSP on the ground that the contribution condition in section 31 of the Pensions Act 2014 requires that national insurance contributions be actually paid. The claimant brought judicial review proceedings and the case was considered by Kerr J in the Administrative Court ([2022] EWHC 2298 (Admin)), who, applying section 3 of the Human Rights Act 1998 and following the Northern Ireland Court of Appeal in O’Donnell, read an exception into the statutory contribution condition and made a declaration accordingly. The Secretary of State appealed.

The Court of Appeal heard submissions on whether O’Donnell was binding or highly persuasive, the proper formulation and objectivity of the relevant "status" under article 14, whether there was discrimination within the ambit of A1P1, and whether any difference in treatment could be objectively and reasonably justified. The court analysed the matter using the Bank Mellat proportionality questions and considered the relevance of the contributory principle, administrative workability and certainty as legitimate aims advanced by the Secretary of State.

• Nature of the claim/application: judicial review of the refusal to award BSP; declaration sought that the statutory contribution condition be read as compatible with Convention rights or, alternatively, a declaration of incompatibility.
• Issues framed by the court: (i) whether the claimant’s complaint fell within the ambit of a Convention right; (ii) whether the ground of difference constituted an identifiable "status"; (iii) whether there was differential treatment in a Thlimmenos sense; (iv) whether that treatment was justified (Bank Mellat steps); and (v) whether a compatible interpretation under HRA s3 was possible.
• Reasoning: the court followed O’Donnell and Abbott v Philbin practice on cross-jurisdictional uniformity, accepted that the claimant’s position fell within the ambit of A1P1, regarded the associative status based on lifelong inability to work through disability as an objective evaluative status, and concluded that the contribution condition, as applied to that class, lacked objective and reasonable justification. The court considered the contributory principle and administrative concerns but concluded (on the O’Donnell reasoning) that they did not justify excluding the very limited class of persons who never had the opportunity to pay contributions due to lifelong disability. The court also held that a section 3 reading-in was not precluded on the facts.

The court therefore dismissed the Secretary of State’s appeal and upheld the High Court declaration allowing a section 3 reading in the terms adopted by Kerr J and O’Donnell. The First-tier Tribunal appeal remained stayed for factual determination of whether the deceased was in fact unable to work throughout her working life.

Appeal dismissed. The Court of Appeal followed the Northern Ireland Court of Appeal in O’Donnell and Kerr J: the claimant’s case came within the ambit of A1P1, the associative status (lifelong inability to work through disability) was a valid status for article 14 purposes, the application of the contribution condition to that class amounted to discrimination which was not justified, and in the circumstances a reading-in under section 3 of the Human Rights Act 1998 was possible to avoid incompatibility with Convention rights. The court applied the Bank Mellat proportionality framework and gave deference to the prior appellate decision (Abbott v Philbin rule) in a case of identical statutory text and policy of parity.

Appeal to the Court of Appeal from the Administrative Court (Kerr J) [2022] EWHC 2298 (Admin); permission to appeal granted by Kerr J. The claimant’s appeal to the First-tier Tribunal is stayed by consent.