HM v Secretary of State for Work and Pensions

A surviving cohabitant without qualifying children is not in an analogous position, for the purposes of article 14 of the Convention, to a surviving spouse or civil partner entitled to bereavement benefits. The distinction rests on the existence of a legally valid marriage or civil partnership.

A facially neutral eligibility rule may nevertheless amount to indirect sex discrimination where official statistics show that it disproportionately excludes women. The state must then establish objective and reasonable justification. In social-security policy, the promotion of marriage and civil partnership, preservation of the contributory principle, and a readily verifiable bright-line rule capable of avoiding excessive administration can provide very weighty justification.

HM and MK each claimed a bereavement payment and bereavement allowance after the death of a long-term cohabiting partner. Neither appellant had a qualifying child and neither had been married to, or in a civil partnership with, the deceased.

The Secretary of State refused both claims under the Social Security Contributions and Benefits Act 1992. The First-tier Tribunal upheld the refusals. The appeals to the Upper Tribunal alleged discrimination contrary to article 14 of the Convention, read with article 8 and/or article 1 of Protocol 1, on grounds of marital status, sex and sexual orientation.

The central issues were whether cohabitants were analogous to surviving spouses or civil partners, whether the exclusion had a disproportionate impact on women, and whether any discrimination was justified or remediable.

1. Appeals dismissed. The appellants were not in an analogous position to a person married to, or in a civil partnership with, the deceased. SSWP v Akhtar [2021] EWCA Civ 1353 bound the Upper Tribunal to that conclusion. The relevant distinction was between a relationship formalised by a marriage valid in domestic law or a civil partnership, and one which was not.

2. The same conclusion would have followed independently. Bereavement payment and bereavement allowance were directed to short-term financial needs following bereavement, rather than grief as such. The evidence did not establish that married and unmarried couples without children were generally in an analogous financial position. The case fell within the ambit of article 8, as well as article 1 of Protocol 1, but that did not alter the comparability analysis.

3. The statutory condition was facially neutral as between women and men. Official statistics showed that women formed a substantially higher proportion of bereavement-benefit claimants. Applying R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, that established a prima facie case of indirect sex discrimination and required justification.

4. The measure was justified. In the social-security context, Parliament was entitled to accord importance to promoting marriage and civil partnership, to limiting exceptions to the contributory principle, and to using a clear and objectively verifiable eligibility criterion. A fact-sensitive assessment of cohabitation would impose substantial administrative burdens. Taken together, those considerations supplied the very weighty reasons required for the indirect impact on women.

5. There was discrimination on grounds of sexual orientation during the period when opposite-sex couples could not enter civil partnerships but same-sex couples could. However, the Upper Tribunal was not a court listed in section 4(5) of the Human Rights Act 1998 and could not grant a declaration of incompatibility. Obiter, section 4 did not permit a further declaration concerning legislation which Parliament had already amended following the declaration in Steinfeld and Keidan v Secretary of State for International Development [2018] UKSC 32. The appellants nevertheless had victim status under section 7(7).

• Upper Tribunal (Administrative Appeals Chamber): Appeals dismissed: [2023] UKUT 15 (AAC).
• First-tier Tribunal (Social Entitlement Chamber): Upheld the Secretary of State’s refusals of bereavement benefits. The relevant decisions were made on 8 May 2019 in HM’s case and 23 September 2019 in MK’s case; no citation is stated.