Social Security Case Law - Spring 2024

Headnote

Payment of bereavement support benefit case.  The denial of bereavement support payment to the family of a deceased woman who lived with severe disability and was unable to work and therefore pay National Insurance contributions is unlawful re Article 14 read with Article 8 and Article 1 Protocol 1 ECHR.

Background

The Applicant’s wife had severe disabilities, was unable to work throughout her life and did not pay National Insurance contributions.  This meant that the Applicant’s wife did not fulfil the contributions conditions within the Pensions Act 2014 (section 31) for the Applicant to claim bereavement support payment.

The Applicant requested a mandatory reconsideration and then initiated a JR.  The High Court found in favour of the Applicant, see Jwanczuk, R (On the Application of) v Secretary of State for Work and Pensions [2022] EWHC 2298 (Admin).

This case follows the findings of a Law Centre NI case, O’Donnell v Department for Communities [2020] NICA 36.  As in O’Donnell, in Jwanczuk, the Judge applied Section 3 HRA 1998 to ‘read in’ an exception to the contribution condition for bereavement support payment.  The Judge found that reading the Pensions Act 2014 in this way meant that it was compatible with the European Convention of Human Rights – Article 14 (discrimination), when read with Article 8 (family and private life) and Article 1 of the First Protocol (A1P1).

The Secretary of State appealed to the Court of Appeal.

Legal Issue

The Secretary of State appealed on four grounds:

• The High Court should not have followed the judgment in O’Donnell
• The High Court should not have found the Applicant had ‘other status’ for the purposes of Article 14 – discrimination.
• The High Court should have found that the legislation/policy was justified in determining Article 14 – discrimination.
• The High Court should not have found an exception could be read into Section 31 of the Pensions Act 2014, under Section 3 of the HRA 1998. If a breach of Article 14 was found ,then the remedy would be a declaration of incompatibility under Section 4 HRA 1998.

Decision

The Court of Appeal dismissed the Secretary of State’s appeal.

• Re the High Court should not have followed the judgment in O’Donnell. The Judge found that the High Court did not make an error of law in deciding to follow the O’Donnell judgment.  The Judge held that the High Court ‘should be even slower than this Court to reach a different conclusion from an appellate Court in Scotland or Northern Ireland on an identical issue about the meaning or effect of UK legislation.’
• Re the High Court should not have found the Applicant had ‘other status’ for the purposes of Article 14 – discrimination. The Judge found that the High Court followed O’Donnell in identifying the Applicant’s status ‘..as if the deceased was unable to comply with Section 31(1) (of the Pensions Act) throughout her working life due to disability.’
• Re the High Court should have found that the legislation/policy was justified when determining Article 14 – discrimination. The Judge considered the approach taken in O’Donnell, which was a proportionality analysis of the four Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 questions.  (1) that the aims of the policy (including incentivising work) justify the limitation of a protected right (2) that the aims are legitimate and connected to the Section 31 Pensions Act contribution policy (3) whether a less intrusive measure or policy could have been used (4) whether the objective of the policy outweighs the effect of the policy on those subject to it.  The Judge found that the case was not of an exceptional nature which would justify the court to not follow the findings in O’Donnell.
• Re remedy available under Section 3 of the HRA 1998. Again, the Judge found that there was no reason to not follow the findings in O’Donnell.  The Judge stated:

‘…..the conclusion that a remedy if available under Section 3 is, with respect, less straightforward that the Northern Ireland Court of Appeal…appear to have believed.  I do not, however, express any concluded view….The Northern Ireland Court of Appeal has decided as a matter of ratio that the relevant statutory language can be read down in the way that Kerr J did, and I see no compelling reason which would justify out reaching a different conclusion.’