AR v SSWP CG/1781/2017
This case concerns entitlement to Widowed Parent’s Allowance (WPA) where the claimant and the 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 claimant 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 has been remitted to the UT for a decision on the WPA entitlement. The case has been listed for a hearing in the UT on 13/02/20.
The claimant in this case became engaged to her husband in 2007. They planned to have an Islamic marriage ceremony called a Nikah. The claimant 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 claimant used the Nikah certificate to change her name at work, with the DVLA and with her utility providers.
In 2016, the claimant’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 claimant 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 claimant did not meet this requirement.
The claimant appealed to the FtT and the DWP’s decision was upheld. The FtT refused permission to appeal to the Upper Tribunal and the claimant 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 has now been remitted to the UT which has granted permission to appeal and a date for the appeal hearing is awaited.
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). When the appeal is heard by the UT, the court will consider whether 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.