Social security case law

Michael O’Donnell v. Department for Communities [2020] NICA 36

Background

Mr O’Donnell’s wife was unable to work during her working life due to disability. She did not pay any Class 1 or 2 national insurance contributions. She was, however, credited with contributions due to her incapacity for work. Following her death in July 2017, Mr. O’Donnell applied for Bereavement Support Payment (BSP). The Department for Communities declined Mr O’Donnell’s application because his wife had not paid national insurance contributions.

The Department based its decision on s29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 (the 2015 Act) which require actual payment of contributions. Mrs. O’Donnell’s credited contributions did not satisfy the eligibility requirements.

Mr. O’Donnell appealed the Department’s decision to an Appeal Tribunal.

Legal issue

Represented by Law Centre NI, Mr. O’Donnell argued that the effect of s29 and 30(1)-(3) of the 2015 Act was unfair and discriminatory. He argued that it breached his human rights under the European Convention on Human Rights (ECHR).

Specifically, Mr O’Donnell argued that his Article 14 right (prohibition on discrimination) read with his Article 8 (right to a private and family life) and Article 1, Protocol 1 to the Convention (protection of property) rights had been breached.

The Tribunal referred the following question to the Court of Appeal:

‘Are the provisions of Sections 29 and 30(1)-(3) of the Pensions Act (NI) 2015 incompatible with Articles 8, 14 and Protocol 1 Article 1 of the European Convention on Human Rights, as provided by the First Schedule to the Human Rights Act 1998?’

Decision

The Court of Appeal found that s29-30(1)-(3) of the 2015 Act had the effect of treating the family of a deceased person, who was never able to work, the same as the family of a deceased person who chose not to work.

This similarity in treatment was discriminatory and could not be justified.

The Court of Appeal held that s29 and 30(1)-(3) of the 2015 Act were therefore incompatible with Article 14 read with Article 8 and Article 1, Protocol 1.

The Court concluded that s29(1) of the 2015 Act should be read and given effect so that the national insurance contribution condition is treated as met if the deceased was unable to comply with section 30(1) throughout her working life due to disability.

The Court referred the case back to the Tribunal for a decision on the award. Subsequently, the Department revised its decision and awarded Mr. O’Donnell BSP.

For a full copy of the Judgment click here.