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NI Widowed Parents’ Allowance limitation discriminates against unmarried parents

Re an application by Siobhan McLaughlin for Judicial Review (NI) [2018] UKSC 48

Related Member(s):
Helen Mountfield QC
Related Practice Area(s):
Discrimination and Equality, Human Rights
Court:

Appeal concerns certain requirements applicable to Widowed Parent’s Allowance (Northern Ireland) under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, s 39A. The issue was whether the requirement to have been married or civil partner of a deceased person, unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status, contrary to ECHR, art 14 when read with art 8 and/or art 1 of Protocol 1. The respondent had refused the appellant Bereavement Payment and Widowed Parent’s Allowance (WPA) upon the death of the appellant’s partner because, though they had lived together for 23 years, they had not been married or in a civil partnership.

The Supreme Court allowed the appeal by majority making a declaration that s 39A of the 1992 Act was incompatible with ECHR, art 14 read with art 8 and/or art 1 of Protocol 1. The promotion of marriage and civil partnership was a legitimate aim, and WPA is part of a (small) package of social security measures which privileges marriage and civil partnership. However, it was not a proportionate means of achieving this legitimate aim to deny the appellant and her children the benefit of her partner’s contributions because they were not married to each other. WPA exists because of the responsibilities of the deceased and the survivor towards the children.

Helen Mountfield QC was involved in this case.