AR v SSWP CG/1781/2017
This case concerned entitlement to Widowed Parent’s Allowance (WPA) where the appellant and her deceased partner had undergone a religious ceremony and considered themselves to be and held themselves out as being legally married.
The First tier Tribunal found that the appellant had no entitlement to WPA, and permission to appeal to the Upper Tribunal was refused, first by the FtT and then, on renewal, by the UT itself. Following a successful Cart style judicial review of the decision not to allow permission to appeal, the case was remitted to the UT for a decision on the WPA entitlement. The case was heard in the UT before a three judge panel on 13/02/20 and, on 26/05/20, the UT dismissed the appeal.
Read the full judgment here.
The appellant in this case became engaged to her husband in 2007. They planned to have an Islamic marriage ceremony called a Nikah. The appellant checked with Oldham registry office and her Imam and it was confirmed that the Nikah ceremony would be legally recognized in the UK, with no need for further registration. Following the ceremony in 2010, the appellant used the Nikah certificate to change her name at work, with the DVLA and with her utility providers.
In 2016, the appellant’s partner died and she claimed Bereavement Payment and WPA for herself and the couple’s two children. Both benefit claims were refused on the grounds that the appellant and her late partner were not legally married in accordance with the Marriage Act 1949, despite the assurances given to her at the time of her marriage. Under the Social Security Contributions and Benefits Act 1992, Bereavement Payments and Widowed Parents’ Allowance can only be paid to a surviving spouse or civil partner and the appellant did not meet this requirement.
The appellant appealed to the FtT and the DWP’s decision was upheld. The FtT refused permission to appeal to the Upper Tribunal and the appellant applied direct to the Upper Tribunal for permission to appeal on the basis that she was being discriminated against on the grounds of marital status. Permission to appeal was refused.
Judicial review proceedings were then commenced in August 2017 challenging the UT’s refusal to grant permission to appeal. The judicial review claim was initially stayed behind Re McLaughlin’s Application,  UKSC 48, a challenge to the marriage requirement for WPA as discriminating against unmarried partners and their children. Permission to apply for judicial review was granted following the successful challenge in McLaughlin. The JR application was ultimately allowed without a hearing and the matter was remitted to the UT, which then granted permission to appeal.
The reason for continuing with the case, despite the success of McLaughlin, is because in McLaughlin all the Supreme Court could do was to issue a declaration of incompatibility, that the marriage requirement to qualify for WPA, as set out in primary legislation, was incompatible with the Human Rights Act (HRA). In this case, we asked the UT to consider whether, in a case where a couple have undergone a marriage ceremony, even one that does not result in a legally recognised marriage, then the requirement under s3 HRA to interpret legislation as far as possible in a way that ensures compliance with the HRA means that ‘spouse’ in s39A SSCBA 1992 should be read as including this sub-group of cohabiting couples.
Commenting on the McLaughlin judgment, the UT noted that a declaration of incompatibiliy does not affect the validity or continuing operation of the provision in respect of which it is given. The appellant was therefore still required to be the spouse or civil partner of the deceased in order to claim WPA.
The UT held that they were not able to interpret "spouse" to include a person in the appellant's position, as submitted by CPAG on behalf off the appellant, as to do so would be to go against the "grain" of the legislaton. The UT stated
"In the field of social security law, it is a matter for Parliament to decide who receives benefits and who does not. This Tribunal will ensure the fair and proper allocation of benefits within the law but will not grant socio-economic benefits that Parliament has decided to withhold".
In the case of WPA, the UT concluded that the grain of the legislation is that only a spouse or civil partner should receive the benefit and that it could not interpret the legislation in the way submitted by the claimant without "crossing the divide between the interpretative function of the courts and matters of policy that are democratically entrusted to Parliament".
Advising unmarried WPA claimants:
While a person that is newly bereaved should claim bereavement support payment (BSP), a new claim for WPA can still be made in respect of deaths that occurred before 06/04/17. However, despite the McLaughlin judgment, no changes have been made to the legislation and so a claim by a person who was not married to or in a civil partnership with the deceased will be refused. Widowed and Young (WAY) are lookiing into potential remedies. A claimant that would otherwise be eligible to claim WPA, but was not married to or in a civil partnership with the deceased, should still make a claim. This claim will be refused and they should then request a mandatory reconsideration. They should also join WAY to ensure that they are kept informed of any future action on this issue.