R (Jwanczuk) v. Secretary of State for Work and Pensions  EWHC 2298 (Admin)
On 7 September 2022, the High Court of England and Wales decided that the refusal of a claim for Bereavement Support Payment (BSP) by the bereaved spouse of a severely disabled women was unlawful.
Mr. Jwanczuk’s wife, Suzanne, suffered from a hereditary muscle condition that caused severe physical health problems and rendered her unable to work. Following her death in November 2020, Mr. Jwanczuk applied for BSP to help him cope with the financial impact of losing his wife.
The Secretary of State for Work and Pensions (SSWP) refused Mr. Jwanczuk’s application. The reason given was that Mrs. Jwanczuk did not pay enough National Insurance contributions during her lifetime. This was despite Mrs. Jwanczuk receiving National Insurance credits during this time.
Mr. Jwanczuk applied to the High Court of England and Wales for judicial review of the SSWP’s decision. He argued that the decision discriminated against him and breached his rights under the European Convention on Human Rights, as given effect by the Human Rights Act 1998. Mr. Justice Kerr, hearing the case, agreed with Mr. Jwanczuk.
In finding in Mr. Jwanczuk’s favour, Mr. Justice Kerr applied a Northern Ireland Court of Appeal decision in a case brought by Law Centre NI on behalf of our client, Michael O’Donnell: O’Donnell v. Department for Communities  NICA 36.
Like Mr. Jwanczuk, Mr. O’Donnell applied for BSP following the death of his wife, Pauline, who had been unable to work during her lifetime because of serious illness. When his application was refused, with our assistance, Mr. O’Donnell challenged the decision to the NI Court of Appeal.
The NI Court of Appeal decided that Mr. O’Donnell had suffered unlawful discrimination in breach of his European Convention rights. It also decided that the applicable legislation – the Pensions Act (NI) 2015 – should be read so that the BSP contribution condition is met if the deceased was unable to work during their working life due to disability.
Agreeing with the NI Court of Appeal and finding that the case before him was on all fours with Mr. O’Donnell’s, Mr. Justice Kerr decided in favour of Mr. Jwanczuk. The Judge concluded that the Pensions Act 2014 should be read in the same way as the Pensions (NI) Act 2015 to entitle Mr. Jwanczuk to BSP.
The Secretary of State has been granted Permission to Appeal the High Court’s decision.
We will keep advisers updated on further legal developments in this area.