Bereavement Support Payments for Unmarried Parents
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?