Margaret Kelly v Secretary of State for Work and Pensions

The Court of Appeal dismissed the appellant's challenge to the refusal of bereavement benefits. The appellant argued that sections 36 and 39B of the Social Security Contributions and Benefits Act 1992 (as preserved by transitional provisions) discriminated against her on grounds of sexual orientation contrary to article 14 read with article 8 and/or Article 1 of Protocol 1. The court held that, on the proper characterisation, the real incompatibility identified by the Upper Tribunal derived from the prior unavailability of opposite-sex civil partnerships (the Steinfeld incompatibility) which Parliament had since remedied prospectively. The court found no unjustified current discrimination in the slender continuing operation of sections 36 and 39B for limited transitional purposes and, in any event, declined to exercise the section 4(1) power to make a declaration of incompatibility because it would not be an appropriate or effective remedy in the statutory context (including the remedial and transitional scheme under the Human Rights Act 1998 and social security statutes).

Background and procedural history

• The appellant, Ms Kelly, claimed bereavement benefits under sections 36 and 39B of the Social Security Contributions and Benefits Act 1992 after the death of her partner. The Secretary of State refused the claim on the ground she was not married or in a civil partnership. The First-tier Tribunal dismissed her appeal; the Upper Tribunal set aside and reconsidered matters and concluded it lacked jurisdiction to make a declaration of incompatibility but recorded that the underlying incompatibility was the same as that identified in Steinfeld.
• The appellant appealed to the Court of Appeal with permission on a single remaining ground: that this court should make a declaration of incompatibility under section 4 of the Human Rights Act 1998 in circumstances where the UT said it had no such power and that, without such a declaration, she is left without an effective remedy for discrimination.

Legal issues framed

1. Whether the circumstances fell within the ambit of Convention rights (article 8 and Article 1 of Protocol 1) for the purposes of an article 14 complaint.
2. Whether there was a difference in treatment between the appellant and suitable comparators (including those protected by the 2017 transitional provisions) amounting to discrimination on grounds of sexual orientation.
3. Whether any difference in treatment was objectively justified.
4. If unmet, whether this court should exercise its discretion under section 4(1) HRA to make a declaration of incompatibility in respect of sections 36 and 39B of the 1992 Act.

Court's reasoning and conclusions

• The court accepted the UT's analysis that the substantive source of the appellant's disadvantage was the historic unavailability of opposite-sex civil partnerships identified in Steinfeld, which Parliament had since remedied prospectively by changing the Civil Partnership Act 2004 and consequentially other legislation.
• The court concluded the appellant was not in an analogous position to the two categories preserved by the 2017 transitional provisions (those with undiscovered deaths, and those who had made claims but not yet been paid) because she had made a timely claim, had been refused and had pursued appeals. Any residual difference in treatment arose from differing factual circumstances, not from sexual orientation alone, and was justifiable.
• Even if there were an unresolved incompatibility in the narrowly surviving operation of sections 36 and 39B, the court exercised restraint and refused to make a declaration of incompatibility. The court emphasised the remedial structure of the HRA, Parliament's primary role in deciding remedial measures, the existing statutory scheme governing retrospective effect and corrections of benefits, and the low prospect that a declaration would produce the retrospective remedy sought. The court also noted there was no clear route to HRA damages in this statutory context and that a declaration would not necessarily afford an effective remedy.

Wider context: the judgment explains the interplay between human rights remedies, transitional social security provisions and Parliament's remedial choices; it notes the court's reluctance to issue a declaration merely to encourage reconsideration by the executive or legislature where an effective remedy would not follow.

Appeal dismissed. The court held that, on proper characterisation, the appellant's complaint derived from the historic unavailability of opposite-sex civil partnerships already identified in Steinfeld and remedied prospectively by Parliament; there was no unjustified current discrimination in the limited surviving operation of sections 36 and 39B, and even if there were, it would not be appropriate for this court to make a declaration of incompatibility under section 4(1) HRA because of the remedial scheme, transitional provisions and the limited utility of such a declaration in the circumstances.

Appeal from the Upper Tribunal (Administrative Appeals Chamber) (Upper Tribunal Judge Ward, UA-2020-001686-BB). The appellant's claim originated in determinations by the Secretary of State, appeals to the First-tier Tribunal and a further appeal to the Upper Tribunal; the UT provided the decision from which this Court of Appeal heard the appeal.