Cohabitation and widowed parent’s allowance: McLaughlin

The Supreme Court has handed down judgment in McLaughlin, Re Judicial Review [2018] UKSC 48. By a majority of four to one (Lord Hodge dissenting), the Court ruled that the refusal by the Northern Ireland Department for Communities of Ms McLaughlin’s claims for widowed parent’s allowance [WPA] is incompatible with Article 14 ECHR (discrimination) read with Article 8 (respect for private and family life), insofar as the refusal precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of a deceased person.

Background

Widowed parent’s allowance is a non-means-tested contributory social security benefit payable to men and women who are widowed with dependent children. The widowed parent’s entitlement depends upon the contribution record of the deceased partner. Currently, the widowed parent can only claim the allowance if he or she was married to, or the civil partner of, the deceased [1]. Ms McLaughlin and her partner, Mr John Adams, had lived together for 23 years until he died in 2014 and their four children were aged 19, 17, 13 years and 11 when their father died [2].

The issue in McLaughlin was whether the requirement of marriage or civil partnership unjustifiably discriminated against Ms McLaughlin and/or the children, contrary to Article 14 ECHR taken either with Article 8 or with A1P1 [1]. When Ms McLaughlin contested the Department’s refusal to give her the allowance, her claim had succeeded in part before Treacy J in the High Court, but that decision was reversed by the Court of Appeal, which held unanimously that the legislation was not incompatible with Article 14, read either with Article 8 or with A1P1 [3].

The majority judgment

It was clear that the denial of social security benefits was within the ambit of A1P1 [16] and widowed parent’s allowance also came within the ambit of Article 8 [19].

At first instance, Treacy J had distinguished between Ms McLaughlin’s claim for the bereavement payment and her claim for widowed parent’s allowance. In the case of the former, he had held that the lack of a public contract between Ms McLaughlin and Mr Adams meant that her situation was not comparable with that of a widow and, therefore, that her claim must fail – a conclusion that was not appealed. In the case of the widowed parent’s allowance, however,

“he held that the relevant ‘facet of the relationship’ was not their public commitment but the co-raising of children. For that purpose marriage and cohabitation were analogous” [26].

Lady Hale agreed with Treacy J’s analysis:

“Widowed parents’ allowance is only paid because the survivor is responsible for the care of children who were at the date of death the responsibility of one or both of them. Its purpose must be to benefit the children. The situation of the children is thus an essential part of the comparison. And that situation is the same whether or not the couple were married to one another. It makes no difference to the children. But had the couple been married, their treatment would be very different: their household would have significantly more to live on while their carer is in work” [27: emphasis added].

It was well established that being unmarried was a status for the purpose of Article 14, just as being married could be a status for the purpose of the Article [31]. Ms McLaughlin’s situation was

“sufficiently comparable to that of a widow or widower with children for the difference in treatment based on the lack of a marriage tie to require justification. This, in turn, depends upon whether it pursues a legitimate aim and whether there is ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realised’” [32]

The “legitimate aim” put forward by the respondent was to promote the institutions of marriage and civil partnership by conferring eligibility to claim only on the spouse or civil partner of the person who made the contributions [36]; but “The mere existence of a legitimate aim is not enough: there has to be a rational connection between the aim pursued and the means employed” [37].

“Where means-tested benefits are concerned, it is difficult indeed to see the justification for denying people and their children benefits, or paying them a lower rate of benefit, simply because the adults are not married to one another. Their needs, and more importantly their children’s needs, are the same. But we are concerned here with a non-means-tested benefit ‘earned’ by way of the deceased’s contributions. And the allowance is a valuable addition to the household income if the survivor is in work. Is it a proportionate means of achieving the legitimate aim of privileging marriage to deny Ms McLaughlin and her children the benefit of Mr Adams’ contributions because they were not married to one another?” [38]

“In my view, the answer to that question is manifestly ‘no’ … The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another. The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same whether or not the parents are married to or in a civil partnership with one another” [39].

Therefore, denying Ms McLaughlin and her children the benefit of Mr Adams’ contributions because they were not married to each other was not a proportionate means of achieving a legitimate aim. That conclusion was reinforced by the international obligations to safeguard children’s rights, to which the UK is a party and which inform the interpretation of the ECHR rights; and it was

“also noteworthy that the great majority of member states of the Council of Europe provide survivor’s pensions directly to the children irrespective of birth status and in every other member state for which evidence is available, apart from Malta, where a pension is not paid directly to the child a pension can be paid to the surviving parent whether or not they were married to the deceased parent. This is evidence of a European consensus which is always relevant to the width of the margin of appreciation which Strasbourg will allow” [41].

Appeal allowed [45].

Comment

It should be noted that the judgment does not, of itself, change the law. The Court made a declaration that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with Article 14 of ECHR, read with Article 8, insofar as it precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased [45]; however, Lady Hale was at pains to point out that “A declaration of incompatibility does not change the law: it is then for the relevant legislature to decide whether or how it should be changed” [43]. Moreover, the law has subsequently been changed by the Pensions Act 2014 and the Pensions Act (Northern Ireland) 2015 in respect of deaths taking place after their implementation in March 2017; and the new law is not necessarily incompatible with Convention rights [44].

So the next steps are up to the Government of Northern Ireland: currently HMG.

Cite this article as: Frank Cranmer, "Cohabitation and widowed parent’s allowance: McLaughlin" in Law & Religion UK, 30 August 2018, https://lawandreligionuk.com/2018/08/30/cohabitation-and-widowed-parents-allowance-mclaughlin/

 

1 thought on “Cohabitation and widowed parent’s allowance: McLaughlin

  1. Has HMG yet responded to this judgment? Is WMA being paid to persons who otherwise qualify but were cohabiting?

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