Jackson & Others v SSWP CO/975/2019
This case challenges the requirement under the Pensions Act 2014 in conjunction with the Bereavement Support Payment Regulations 2017 that, in order to be entitled to Bereavement Support Payment (BSP) at the higher rate, the claimant must have been the deceased’s spouse or civil partner.
CPAG are representing two families where the mother has 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 has 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 argue 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. Permission was granted on 1 October 2019.
CPAG are arguing 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 are arguing that the McLaughlin decision cannot be taken to 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, so SSWP argue that, even at the higher rate, BSP cannot be said to be intended to benefit the children and is instead for the additional costs incurred by the surviving parent of bereavement.