Skip to main content
CPAG Welfare Rights Home

User account menu

  • Log in

Utility menu - Welfare Rights

  • CPAG Home
  • Benefit rates
  • Shop
  • Training & events

Main navigation

  • Support for advisers
    • Advice line for advisers
    • Support for advisers in England and Wales
    • Support for advisers in Scotland
    • Tell us about your case
  • Handbooks
    • Online handbooks
    • Print handbooks
  • Key topics
    • PIP appeals
    • Maximising income
    • Universal credit
    • Migration to universal credit
    • Survivors of domestic abuse
    • Benefits for migrants
    • Debt
    • Housing costs
    • Personal independence payment
    • Sanctions and work-related requirements
    • Work capability assessment
  • Tools & templates
    • About our tools and templates
    • Universal credit
    • Migration to universal credit
    • Benefits for migrants
    • Personal independence payment
    • Work capability assessment
    • Revision, supersession and appeal procedure
    • Judicial review
  • Benefits in Scotland
    • Scottish benefits
    • More information about benefits in Scotland
    • Other CPAG resources on benefits in Scotland
  • Bulletins & articles
    • Welfare Rights Bulletin
    • Articles
    • eBulletins
  • Test cases
    • About legal test cases
    • Support with an Upper Tribunal case
    • Test case updates
    • Refer a test case
    • Support with the judicial review process
Menu
Search

Breadcrumb

  1. Home
  2. Welfare rights
  3. Test cases and legal challenges
  4. Legal test cases

Bereavement Support Payments for Unmarried Parents

Jackson & Others v SSWP [2020] EWHC 183
On 7 February 2020, the High Court handed down judgment in this case. It was held that the requirement under the Pensions Act 2014, in conjunction with the Bereavement Support Payment Regulations 2017, to be married or in a civil partnership in order to claim higher rate bereavement support payment (BSP) was not compatible with the European Convention on Human Rights. The SSWP did not appeal that judgment. The Bereavement Benefits (Remedial) Order 2022 came into effect on 9th February 2023 and extends eligibility for bereavement support payment and widowed parent's allowance to cohabiting partners with children.
  • Background facts
  • Legal issues
  • Advising unmarried BSP claimants

Read the High Court judgment

The SSWP did not appeal the High Court judgment and, eventually, on 9th February 2023, the Bereavement Benefits (Remedial) Order 2023 came into effect. This extends eligibility for bereavement support payment and widowed parent's allowance (WPA) to cohabiting partners with children and has retroactive effect from 30th August 2018.

Background facts

CPAG represented two families where the mothers 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, 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, 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.

Legal issues

CPAG issued a claim for judicial review on the grounds that the requirement in the Pensions Act 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 WPA and that the reasoning in Re McLaughlin’s Application [2018] UKSC 48 (in which CPAG intervened), where the Supreme Court held that the requirement to be a spouse or civil partner of the deceased person in order to claim WPA was discriminatory contrary to Article 14 ECHR with Article 8, applied equally to higher rate BSP.

As with WPA, it was submitted on behalf of the two families 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 because WPA was intended to replace the lost earnings of the deceased parent while the children are growing up. BSP, on the other hand, is paid over a fixed, short term period and was meant simply to cover the additional costs associated with adjusting to the death of a spouse rather than being an income replacement benefit. SSWP argued that, following on from this, even at the higher rate, BSP could not be said to be intended to benefit the children. This argument was rejected by Judge Holman as “fanciful”.

Advising unmarried BSP claimants

A cohabiting partner whose partner dies on or after 9th February 2023 will be able to make a claim for BSP, provided that they meet the other qualifying conditions for the higher rate of payment (a cohabiting partner that does not meet the qualifying conditions for the higher rate of payment, i.e. who is not pregnant or entitled to child benefit, does not qualify for BSP).

Because the Order has retroactive effect, a cohabiting partner who was bereaved between 30th August 2018 and 9th February 2023 can make a claim and receive their full entitlement. The claim must be made within 12 months of the remedial order. If the deadline is missed, but a claim is made within 21 months of 9th February 2023, the claim will be backdated by three months and the claimant will receive BSP for the remaining period in the 18 months from 9th February 2023, e.g. a claim made on 8th September 2024 is treated as having been made on 8th June 2024 and so the claimant receives BSP for 2 months (entitlement ends on 9th August, 18 months after the remedial order). If the claim is made outside the 12 month deadline, the claimant will not receive the £3,500 lump sum.

A cohabiting partner whose partner died before 30th August 2018 may be able to claim BSP or WPA if they satisfy the entitlement conditions for the relevant benefit between 30th August 2018 and 8th February 2023. However, their eligibility for bereavement benefits only runs from that date. For BSP claimants (those whose partner died on or after 6th April 2017) that make a claim within 12 months of 9th February 2023, this means that they will receive BSP for 18 months, less the number of months between the date of their partner's death and 30th August 2018. They will not receive the £3,500 lump sum. For WPA claimants (those whose partner died before 6th April 2017) that make a claim within 12 months of 9th February 2023, this means that they are entitled to WPA payments from 30th August 2018 until they no longer meet the eligibility conditions. WPA overlaps with certain means tested benefits and so the claimant may not receive the full amount of WPA for the period during which they were eligible if they were receiving another means tested benefit at the time. If they were receiving universal credit, the backdated WPA will cause an overpayment that is recovered from their ongoing universal credit award.

Further information can be found in our Welfare Rights Bulletin article Bereavement benefits - a remedy?

Test case
Published on
5 February 2021
Relevant to
all of the UK
Status
Concluded

    Advice for advisers

    Free, expert advice on benefit and tax credit issues if you’re a frontline adviser or support worker.

    Contact the advice line.

    • [email protected]
    • [email protected]

    WR Footer

    • Become a subscriber
    • Advice line for advisers
    • Training and events
    • eLearning
    • CPAG shop

    CPAG's Advice and Rights Team

    • Follow us on Twitter

    © 2025 CPAG | Child Poverty Action Group is a charity registered in England and Wales (registration number 294841) and in Scotland (registration number SC039339)

    Company limited by guarantee registered in England (registration number 1993854)

    Housekeeping (footer)

    • Disclaimer
    • Privacy policy
    • Cookies
    • Terms and conditions
    • Feedback and complaints
    Site built by Agile Collective
    End Child Poverty Fundraising Regulator badge with validation link
    • Child poverty in the UK
      • Poverty: facts and figures
      • What is poverty?
      • Causes of poverty
      • Effects of poverty
      • Ending child poverty
    • What we do
      • Our impact
      • Our objectives
      • Our campaigns
        • Imagine
        • End child poverty
        • End child poverty in Scotland
        • Scottish Campaign on Rights to Social Security
        • Past campaigns
      • Project work
        • Cost of the School Day
          • Resources for tackling poverty in schools
            • All Cost of the School Day resources
              • Talking about costs and money at school - advice from parents and carers
              • Create poverty aware school communities
              • Show leadership and take action
              • Communicate about costs and money
              • Offer confidential and supportive conversations
            • Toolkits
            • Calendar
            • eLearning
            • Ideas Bank
              • Awareness, values and ethos
                • Understanding poverty in your area
                • Cost of the School Day Information Booklet for Families
                • Nurturing approaches
                • Rebranding support to boost uptake
              • Entitlements and financial support
                • Boosting free school meal uptake
                • Family support staff
                • Offering support and referrals
                • Promoting support
              • School uniform
                • Simple, affordable and inclusive uniform policies
                • School and cluster run uniform banks
                • Providing new uniform and clothing
                • Parent-led uniform stall
              • Eating at school
                • Breakfast clubs
                • Breakfast, breaktimes and lunch
                • Boosting free school meal uptake
              • Consulting and planning
                • Listening to families
                • Parents leading consultation
                • Children consulting their school community
                • Whole school approaches
                • Creating a Cost of the School Day policy with learners
                • Cost of the School Day calendar, created by learners
              • Events, celebrations and fundraising
                • Pre-loved prom initiative
                • Supporting attendance and easing pressure
                • World Book Week in Dundee
                • Stress-free Halloween celebrations at school
                • Non-stigmatising online fundraising
              • Learners in the lead
                • Cost of the School Day pupil groups
                • Pupils asking parents and carers about costs
                • Young people sharing their views about uniform at the Scottish Parliament
                • Learners take universal free school meal call to the Scottish Parliament
                • Talking directly to politicians about cost barriers at school
                • Cost of the School Day pupil group interview their Headteacher
              • Communicating with families
                • Building relationships and keeping in touch
                • Open and clear written communication about support
                • Communicating commitment to equity
                • Letting everyone know
                • Engaging with partners in the community to share information with families
                • Improved attendance through support and communication
              • Trips, clubs and experiences
                • Funding trips
                • Offering support for trips
              • Learning and resources
                • Digital devices, connectivity and curriculum costs
                • Preparation station
                • After school study cafes
              • Local authority approaches
                • Equity in South Lanarkshire
                • Kit for all, Dundee
                • Financial inclusion support officers in Glasgow
                • Dundee City Council's Cost of the School Day
                • Involving young people in financial inclusion in East Ayrshire schools
              • Parental involvement
                • Parents in partnership
                • Parent equality groups
                • Working with parent groups on costs
            • Big Question report and film
          • Voice network and Youth Voice
            • Voice network in Scotland
            • Voice network news and opportunities - Scotland
            • Voice network activities - Scotland
              • Voice network activities - raising awareness
              • Voice network activities - asking everyone about costs
              • Voice network activities - taking action
            • Youth Voice in Wales
            • Youth Voice in England
          • Contact the Cost of the School Day team
          • The Cost of the School Day reports, blogs and briefings
        • Early Warning System
          • About the Early Warning System
          • Contact the Early Warning System team
          • Early Warning System findings
        • Managed migration
        • Projects in England and Wales
          • Cost of the School Day
          • Early Warning System
          • Secure Futures for Children and Families
          • Managed migration
          • Universal credit, digitalisation and the rule of law
          • Your Work Your Way
        • Projects in Scotland
          • Strengthening Social Security: research into the five family payments
      • CPAG in Scotland
      • The CPAG team
        • CPAG staff
        • CPAG trustees
        • CPAG's patron and ambassadors
        • CPAG trainers
    • Policy and research
      • Findings from our projects
        • The Cost of a Child reports
        • Cost of the School Day reports, blogs and briefings
        • Early Warning System findings
        • Managed migration research project findings
        • Your Work Your Way - findings from the project
        • Secure Futures for Children and Families
        • Universal credit, digitalisation and the rule of law
      • Our position
        • The two-child limit: our position
        • The benefit cap: our position
      • Policy briefings and reports
        • David Webster briefings on benefit sanctions
      • CPAG's Poverty journal
      • Policy books from CPAG
    • Welfare rights
      • Support for advisers
        • Advice line for advisers
        • Support for advisers in England and Wales
          • Support with the judicial review process
            • What judicial review is and how it can help
            • Judicial review template letters
              • Guide to using CPAG's judicial review pre-action letter templates
              • Universal credit and migration to universal credit
              • Other benefits and payments
              • Benefits for people in particular circumstances
              • Decisions, delays and challenging decisions
            • Pursuing to court and finding a solicitor
          • Support with an Upper Tribunal case
        • Support for advisers in Scotland
          • Advising low-income families in Scotland
          • Advising disabled people and carers in Scotland
          • Advising migrant groups in Scotland
          • Advising students in Scotland
          • Advising kinship carers in Scotland
          • Advising care-experienced young people in Scotland
          • Advising families with a child in the care system in Scotland
        • Tell us about your case
      • Handbooks
        • Online handbooks
        • Print handbooks
      • Key topics
        • PIP appeals
          • Introduction
          • Before you appeal
          • Submitting your appeal
          • Checking the law, facts and evidence
          • Writing the submission for your appeal
          • Your appeal hearing
          • What to do when you get the tribunal's decision
        • Maximising income
        • Universal credit
          • Universal credit - the basics
          • Universal credit and sanctions
        • Migration to universal credit
        • Survivors of domestic abuse
          • Financial help for families fleeing domestic abuse
          • Unwanted payments of abuser’s benefit into your account
          • Exceptions to the two-child limit
          • Work-related requirements if you have recently experienced domestic abuse
          • Separated but living in the same property
          • Value of property and its effect on means-tested benefits
        • Benefits for migrants
        • Debt
        • Housing costs
        • Personal independence payment
        • Sanctions and work-related requirements
        • Work capability assessment
      • Tools & templates
        • About our tools and templates
        • Universal credit
        • Migration to universal credit
        • Benefits for migrants
        • Personal independence payment
        • Work capability assessment
        • Revision, supersession and appeal procedure
        • Judicial review
      • Benefits in Scotland
        • Scottish benefits
          • Children and young people
            • Pregnancy and baby payment
            • Early learning payment
            • School age payment
            • Best start foods
            • Scottish child payment
            • Residence rules for best start grant
            • Getting a best start grant if you are not getting a qualifying benefit
            • How to challenge a Social Security Scotland decision
          • Disability benefits
            • Child disability payment
            • Supporting information for child disability payment claims: suggestions for education staff
            • Child winter heating payment
            • Adult disability payment
            • Adult disability payment assessment
            • Scottish adult disability living allowance
            • Pension age disability payment
            • How to challenge a disability benefit decision
          • Help with council tax
            • Council tax reduction
            • Council tax reduction if you live with an adult who is not your partner
            • Council tax reduction if you live in a band E to H property
            • Calculating the new Scottish council tax reduction
            • Challenging a council tax reduction decision
            • When your council tax reduction starts
            • If you get council tax reduction and your circumstances change
            • Other ways to reduce your council tax bill
          • Benefits for carers
            • Carer support payment
            • Carer's allowance supplement
            • Young carer grant
            • How to challenge a Social Security Scotland decision
          • Help with heating costs
            • Child winter heating payment
            • Winter heating payment
            • Pension age winter heating payment
          • Scottish welfare fund
          • Other Scottish benefits
            • Universal credit Scottish choices
            • Funeral support payment
            • Discretionary housing payments in Scotland
            • Job start payment
        • More information about benefits in Scotland
          • Universal credit factsheets
            • Universal credit - the basics
            • Universal credit and students
            • Benefits for lone parent students
            • Kinship carers and universal credit
          • Families factsheets
            • Financial help in the early years
            • Financial help in the school years
            • Financial help for young parents
            • Parents claiming for young people in further education or training
            • Childcare costs: getting support
            • Children looked after by the local authority - impact on family benefits
            • Financial help for families fleeing domestic abuse
            • Universal credit for lone parent students
            • Financial help for families affected by imprisonment
          • Disability benefits factsheets
            • Benefits for disabled children and their families - a checklist
            • Benefits for disabled students
          • Benefits for migrants and refugees factsheets
            • Rights to benefits and tax credits for European nationals
            • EU citizen guide to claiming benefits in the UK
            • Benefits for new refugees
            • Benefits for resettled Afghans
            • Benefits for resettled Ukrainians
            • No recourse to public funds, person subject to immigration control and benefit entitlement
          • Kinship care factsheets
            • Scottish child payment and kinship carers
            • Kinship carers and universal credit
          • Benefits for students and young people factsheets
            • Benefits for students
            • Benefits for care-experienced students
            • Benefits for disabled students
            • Benefits for young people in further education or training
            • Universal credit and students
            • Parents claiming for young people in further education or training
            • Benefits for lone parent students
            • Care-experienced young people and benefits
            • Students and carer support payment
          • Prison and benefits factsheets
            • Financial help for families affected by imprisonment
            • Prison and benefits
          • Veterans and benefits
        • Other CPAG resources on benefits in Scotland
      • Bulletins & articles
        • Welfare Rights Bulletin
        • Articles
        • eBulletins
      • Test cases
        • About legal test cases
        • Support with an Upper Tribunal case
        • Test case updates
        • Refer a test case
        • Support with the judicial review process
    • Get involved
      • Donate
        • Our supporter promise
      • Fundraise
        • Hold a fundraising event
        • Our fundraising heroes
        • Contact the fundraising team
      • A gift in your will
        • How to leave a gift in your will
        • The impact of your legacy
        • Supporter stories
          • Mike's story
          • Ruth's story
          • Gaynor's story
      • In memory
      • Membership
      • Our campaigns
      • Help our work
        • Share your experience of the benefits system
        • Advisers - tell us about your case
        • Voice network and Youth Voice
        • Tell us about your experience of Scottish child payment and other Scottish payments for families
    • Benefit rates
    • Shop
    • Training & events
    • Log in
    • CPAG Home