R (on the application of Jwanczuk) v Secretary of State for Work and Pensions

An appellate court in one United Kingdom jurisdiction must treat a co-ordinate appellate court’s interpretation of common or identically worded legislation with great respect. Except for the established practice concerning tax statutes, it may depart from a decision it considers wrong without showing exceptional circumstances or another compelling reason.

Being the surviving partner of a person unable throughout working life to work and pay contributions because of disability is an objectively determinable “other status” under article 14. However, requiring actual contributions for Bereavement Support Payment is objectively and reasonably justified. Parliament could preserve the contributory principle and adopt a simple, certain bright-line rule despite hardship in individual cases. A disability exception could not be read into the legislation under section 3 of the Human Rights Act 1998 because it would contradict the scheme’s fundamental policy.

The respondent’s wife had a severe lifelong disability and never worked or paid national insurance contributions. After her death, his application for Bereavement Support Payment was refused because section 31(1) of the Pensions Act 2014 requires actual contributions during the deceased’s working life.

Kerr J allowed the respondent’s judicial review, following O’Donnell v Department for Communities [2020] NICA 36. The Court of Appeal dismissed the Secretary of State’s appeal in [2023] EWCA Civ 1156, holding that it should follow O’Donnell unless that decision was clearly wrong or compelling reasons justified departure.

The Supreme Court considered the weight due to decisions of appellate courts in other United Kingdom jurisdictions, whether the respondent possessed an “other status” under article 14, whether the contribution condition was objectively justified, and whether a disability exception could be read into the legislation under section 3 of the Human Rights Act 1998.

1. The Secretary of State’s appeal was allowed unanimously. Lord Reed and Lady Simler gave the judgment, with which Lord Lloyd-Jones, Lady Rose and Lord Richards agreed. The respondent was not entitled to Bereavement Support Payment because his wife had paid no qualifying contributions.

2. Decisions of appellate courts in different United Kingdom jurisdictions are persuasive rather than binding. Their weight ordinarily depends on the cogency of the reasoning and the practical consequences of divergent decisions. The strict practice in Abbott v Philbin applies to tax statutes because uniformity in taxation has distinctive constitutional and economic importance. It should not be extended generally to social security, employment legislation or Convention questions. An appellate court should respectfully explain why it considers another jurisdiction’s decision wrong and decide the issue for itself; it need not identify exceptional circumstances or some additional compelling reason: paras 92–102.

3. The respondent had an “other status” for article 14 purposes. A lifelong inability, through disability, to undertake enough paid work to make the required contributions is a socially and economically significant personal characteristic. It is capable of objective determination through a rational evaluation of established facts. Article 14 also permits reliance on association with a spouse’s disability-related status: paras 109–119.

4. The refusal constituted relevantly identical treatment of persons in materially different situations. The issue was therefore whether the absence of an exception for a deceased person unable throughout working life to work and contribute was objectively and reasonably justified: para 119.

5. The intensity of proportionality review is contextual. Welfare legislation normally attracts substantial respect because it concerns social and economic policy and allocation of public resources. A disability-related ground may increase scrutiny, but no mechanical formula determines the margin of judgment: paras 120–127.

6. The contribution condition was justified. It pursued legitimate aims of preserving the contributory principle, rewarding work, reducing stigma, and providing a simple, certain and inexpensive system. Parliament was entitled to adopt a bright line. A disability exception would require difficult retrospective, individualised assessment and would dilute the scheme’s fundamental requirement of actual contributions. The objectives outweighed the serious effect on the respondent: paras 137–153.

7. Although academic, section 3 of the Human Rights Act 1998 could not support the proposed exception. Actual payment was fundamental to the scheme, and Parliament had enacted only a narrow work-related death exception. Reading in a substantially wider exception for persons who had never worked would go against the grain and underlying thrust of the legislation: paras 154–159.

1. United Kingdom Supreme Court: In [2025] UKSC 42, unanimously allowed the Secretary of State’s appeal and held that the respondent was not entitled to Bereavement Support Payment.
2. Court of Appeal: In [2023] EWCA Civ 1156; [2024] KB 275, dismissed the Secretary of State’s appeal. It followed O’Donnell because it did not consider the heightened threshold for departure satisfied.
3. High Court: In [2022] EWHC 2298 (Admin); [2023] 1 WLR 711, Kerr J allowed the respondent’s claim. He held that the contribution condition was unjustifiably discriminatory and could be read subject to a disability exception.