High Court declares bereavement support laws incompatible with human rights


Re: Jackson & Ors v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin)

This case concerned a challenge to bereavement support payments under Article 14 of the European Convention on Human Rights in conjunction with Article 8. Widowed parent’s allowance (“WPA”) is payable under the Social Security Contributions and Benefits Act 1992, section 39A in respect of deaths occurring on or before 5 April 2017, if (simplifying) the surviving spouse or civil partner has a child or children. Bereavement support payments (“BSP”) are payable under section 30 of the Pensions Act 2014 (the 2014 Act) to the surviving spouse or civil partner in respect of deaths occurring on or after 6 April 2017. Higher rate bereavement support (HRBSP) payment is payable, at a higher rate, to a qualifying surviving spouse or civil partner if (simplifying) he/she has a child or children.

Under this framework, bereavement support payments may be payable at a higher rate to the surviving parent if his or her spouse or civil partner dies and there is one or more dependent child. It cannot be paid to the surviving parent if his or her non-married cohabitee or non-civil partner dies, no matter how long or settled the cohabitation. The claimants in this case claimed that this unjustifiably discriminates against the surviving parent and/or the child or children in a cohabiting relationship, on the ground of the non-married status, or, in the case of the child, his or her birth, in a way prohibited by the Convention, Article 14. The claimants sought a declaration of incompatibility pursuant to the Human Rights Act 1998, section 4.

The Court held that HRBSP fell within the ambit of Article 8. It held that there was manifestly no justification under Article 14 for giving the additional “cash boost” (the extra £5,500 maximum) which it is recognised that families with a child or children need after the death of a parent and which the HRBSP provides to families based on marriage or civil partnership, yet denying it to those based on cohabitation. The impact of the death upon the child or children, and the financial and other needs of the children, are precisely the same.

In light of the Court’s findings on Article 8, the Court held that the claimants’ children did have victim status and standing to bring the claim, jointly with their fathers. The Court declared section 30(4)(a) of the Pensions Act 2014, read with section 30(1) incompatible with Article 14 in conjunction with Article 8.

Helen Mountfield QC was involved in this case.