Jackson & Others v SSWP CO/975/2019
On 07 February 2020, the High Court handed down judgment in this case. It was held that the requirement under the Pensions Act 2014 to be married or in a civil partnership in order to claim bereavement support payment was not compatible with the European Convention on Human Rights.
Read the full judgment here.
On 14 February 2020, the SSWP made an application for permission to appeal against the decision, which was refused by Judge Holman on 2 March 2020. The application for permission to appeal was not renewed to the Court of Appeal.
CPAG represented two families where the mother had passed away, leaving the fathers, J and S, caring for their young children.
J had been living with his partner for 14 years and they had three sons, now aged 12, 7 and 3. J’s partner died suddenly in October 2018. She had previously been working full time and paying National Insurance contributions. However, when J made a claim for BSP, it was refused on the grounds that the couple had not been married.
S had been living with his partner for 10 years and together they had two daughters, now aged 8 and 6. S’s partner was diagnosed with breast cancer in December 2016, and died in March 2018. As with J, S made an application for BSP, which was refused on the grounds that he and his partner were not married. In both cases the couples were engaged and had intended to marry.
CPAG issued a claim for judicial review on the grounds that the Pensions Act’s requirement for the deceased person and their partner to have been married or civil partners in order to claim the higher rate of BSP is incompatible with the Human Rights Act 1998. As the higher rate is payable only if the surviving partner has children, CPAG argued that it is similar to Widowed Parents’ Allowance (WPA) and in Re McLaughlin’s Application  UKSC 48 (in which CPAG intervened), the Supreme Court held that the requirement to be a spouse or civil partner of the deceased person in order to claim WPA was incompatible with the HRA.
CPAG argued that the requirement to be married or in a civil partnership in order to claim the higher rate of BSP discriminates against children of unmarried couples. As recognised in McLaughlin, the children’s needs are the same whether or not their parents were married and denying them additional financial support after the death of one parent purely because the parents were not married is not a proportionate means of achieving the aim of promoting marriage.
SSWP argued that the McLaughlin decision did not apply to BSP as well as WPA, because WPA was intended to replace the lost earnings of the deceased parent while the children are growing up, and was therefore paid as long as Child Benefit was in payment. BSP, on the other hand, is paid over a fixed, short term period. SSWP argued that, following on from this, even at the higher rate, BSP cannot be said to be intended to benefit the children. This argument was rejected by Judge Holman as "fanciful".
Read our press release here.
Advising unmarried BSP claimants:
Although the High Court has made a declaration of incompatibility with the ECHR, there have been no changes to legislation to date. This means that unless the claimant is married to, or in a civil partnership with, the deceased, their claim for BSP will still be refused. Widowed and Young (WAY), are looking at potential remedies. A claimant should therefore submit their BSP claim, even if they were not married or in a civil partnership. When the claim is refused, they should request a mandatory reconsideration of the decision. The claimant should also join WAY to ensure that they are kept informed of any future action in respect of this issue.