Margaret Kelly v Secretary of State for Work and Pensions

A declaration of incompatibility is concerned with the present effect of legislation. It is not a general mechanism for securing compensation for historic discrimination. Where the alleged disadvantage is the past consequence of discrimination already identified and remedied by Parliament, a further declaration will ordinarily serve no proper purpose. A difference between claimants under transitional social-security provisions may be justified where the claimants are in materially different procedural situations. The Human Rights Act 1998 provides a carefully structured remedial scheme. Article 13 is not among its domestic Convention rights, and the Act does not confer a general right to compensation for past unlawful acts.

Ms Kelly claimed bereavement payment and bereavement allowance after the death of her unmarried male partner. Her claim was refused because she was neither married nor in a civil partnership. The First-tier Tribunal dismissed her appeal. The Upper Tribunal set aside that decision, but on rehearing dismissed the appeal and held that it had no power to make a declaration of incompatibility.

Ms Kelly appealed to the Court of Appeal, contending that sections 36 and 39B of the Social Security Contributions and Benefits Act 1992 discriminated against her under article 14 read with article 8 and article 1 of Protocol 1, and that the court should make a declaration under section 4 of the Human Rights Act 1998. The central issues were whether the transitional provisions created a relevant difference in treatment and, if so, whether a declaration was appropriate.

1. Appeal dismissed. The court held unanimously that sections 36 and 39B of the Social Security Contributions and Benefits Act 1992, to the limited extent that they remained in force, did not discriminate against Ms Kelly contrary to article 14 read with article 1 of Protocol 1 or article 8.
2. An article 14 claim required consideration of whether the circumstances fell within the ambit of a Convention right, whether there was different treatment of persons in an analogous situation, whether the difference was based on a listed or other status, and whether it was objectively justified. These questions were not rigidly compartmentalised. Ms Kelly was not in an analogous situation to persons covered by article 4(2) of the transitional order. She knew that her claim had been refused and knew when her partner had died. The potential comparators either had not claimed because they did not know of the death or had made a claim whose outcome remained unknown.
3. Although the statutory provisions treated those groups differently, the difference arose from their different circumstances, not from sexual orientation. Alternatively, continuing the provisions for persons who had not claimed or whose claims remained undetermined was objectively justified. That justification did not apply to Ms Kelly, who had received a decision and exercised her appeal rights.
4. If there had been unjustified discrimination, the court would still have declined to make a declaration under section 4 of the Human Rights Act 1998. The substance of the complaint was the past discrimination identified in Steinfeld, namely the former unavailability of civil partnerships to opposite-sex couples. That discrimination had been remedied through amendments to the Civil Partnerships Act 2004, which fed through to the relevant legislation via Schedule 1 to the Interpretation Act 1978.
5. The Human Rights Act 1998 did not confer a general right to an effective remedy in the sense asserted, or a general right to compensation for past discrimination. Article 13 was not one of the domestic Convention rights. A declaration would therefore have no proper purpose and would be an inappropriate back door to compensation.
6. Underhill LJ agreed that the appeal should be dismissed. He preferred to express the discretionary conclusion as one of appropriateness rather than likelihood of a governmental or parliamentary response: a court should not refrain from making an otherwise proper declaration merely because it expects no response.

1. Court of Appeal (Civil Division): Appeal from the Upper Tribunal (Administrative Appeals Chamber) dismissed in [2024] EWCA Civ 613.
2. Upper Tribunal (Administrative Appeals Chamber): On rehearing, dismissed Ms Kelly’s appeal and held that it had no jurisdiction to make a declaration of incompatibility.
3. First-tier Tribunal: Dismissed Ms Kelly’s appeal against refusal of her bereavement-benefit claim. The Upper Tribunal first set aside that decision, but the appeal was dismissed again on rehearing.