Cohabiting partners not entitled to spousal bereavement benefits



A mother-of-four, who was refused bereavement benefits upon the death of her cohabiting partner of 23 years, has had her application for judicial review dismissed by the Northern Ireland Court of Appeal.

The Court overturned the decision of the the High Court, in which Justice Treacy found that the decision of the Department for Social Development (DSD), in refusing Ms Siobhan McLaughlin a Widowed Parent’s Allowance on the ground that she was not married or a civil partner at the date of her partner’s death, involved discrimination on the ground of marital status, contrary to Article 8 when read with Article 14 of the European Convention on Human Rights.

Background

Ms McLaughlin lived with her partner John Adams for over 23 years until his death on 28 January 2014. Ms McLaughlin and Mr Adams were unmarried and had four children together who were aged 19, 17, 13 and 11 years at the date of his death.

Ms McLaughlin claimed Bereavement Payment and Widowed Parent’s Allowance, but was refused both benefits because she was neither married to nor a civil partner of Mr Adams at the date of his death.

Ms McLaughlin sought an order quashing the decision of the appellant to refuse payment of the benefits, a declaration that the bereavement provisions in the Social Security Contributions and Benefits (Northern Ireland) Act 1992 should be read so as to extend the benefits to unmarried cohabitees and a declaration that, if the 1992 Act cannot be read and given effect in a way that was compatible with Convention rights, the provisions of the 1992 Act are incompatible with Convention rights.

The High Court

The original grounds for judicial review were:

  1. The decision unlawfully discriminated against the applicant on the basis of marital status contrary to section 6 of the Human Rights Act 1998 and Article 14 in conjunction with Article 8.
  2. The decision unlawfully discriminated against the applicant on the basis of marital status contrary to section 6 and Article 14 in conjunction with Article 1 of protocol 1.
  3. The decision failed to have any or adequate regard for the applicant’s private or family life and her personal autonomy, as required by section 6 and Article 8 in choosing not to enter into a marriage with Mr Adams.
  4. The Department ought to have read and given effect to the 1992 Act in a way that was compatible with the applicant’s Convention rights, in accordance with section 3 of the 1998 Act. In particular, it should have interpreted the word ”spouse” as including a person in the position of Ms McLaughlin having regard to her relationship with Mr Adams.

The Court issued a Notice of Incompatibility pursuant to section 4 of the Human Rights Act 1998 and Order 121 of the Rules of the Court of Judicature notifying the Citizens Advice Bureau, acting on behalf of Ms McLaughlin, the Department of Social Development and the Attorney General for Northern Ireland that they may enter an appearance as a party to the proceedings.

Further, the Court issued a Devolution Notice pursuant to Schedule 10 paragraph 5 of the Northern Ireland Act 1998 and Order 120 of the Rules of the Court of Judicature.

Within his judgment, Justice Treacy found that:

  1. In relation to Widowed Parent’s Allowance and the co-raising of children - spouses/civil partners and cohabitees are analogous
  2. The refusal of the Widowed Parent’s Allowance is not justified because the responsibilities for the children are the same irrespective of marriage, civil partnership or cohabitation
  3. The focus should be on the survivor’s nexus with the child as otherwise it might be said that the birth status of the child would result in them being treated less favourably
  4. The refusal of Widowed Parent’s Allowance is a violation of Article 8 read with Article 14 as it discriminates against the survivor on the grounds of marital status.

Court of Appeal

The DSD’s grounds of appeal were that the trial Judge erred:

  1. In finding the relationship of an unmarried cohabitee analogous with that of a spouse or civil partner in the context of a Widowed Parent’s Allowance.
  2. In finding that the different treatment of cohabitees and spouses/civil partners in that context was not justified.
  3. In finding a violation of Article 8 read with Article 14.
  4. In having regard to alleged less favourable treatment of the children on the ground of their birth status, none of the children being applicants.

In June 2016, the Government considered the payment of bereavement benefits for cohabitees, ultimately finding that “a key principle of a National Insurance system is that all rights to benefits derived from another person’s contributions are based on the concept of legal marriage or civil partnership” and that “the question of allowing bereavement benefits for co-habiting couples was out of scope”.

The Court of Appeal then considered extensive domestic and ECtHR caselaw, including (SG) v Secretary of State for Work and Pensions UKSC; Shackell v United Kingdom 27 April 2000); and Lindsay v United Kingdom 1 November 1986

Consequently, the Court was satisfied that the State had “adopted a position on marital status and bereavement benefits that the courts have endorsed and Parliament has reaffirmed” and it was “not for the courts to determine the policy in this area”.

The Court of Appeal was satisfied that the relationship of an unmarried cohabitee was not analogous with that of a spouse or civil partner in the context of a Widowed Parent’s Allowance; the different treatment of cohabitees and spouses/civil partners in that context was justified; there is no violation of Article 8 read with Article 14 and the treatment of the children is not on the ground of their birth status.

Furthermore, section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is not incompatible with Article 1 of Protocol 1 read with Article 14 nor incompatible with Article 8 read with Article 14.

Accordingly, the Court allowed the DSD’s appeal, and Ms McLaughlin’s application for Judicial Review was dismissed.

  • by Seosamh Gráinséir for Irish Legal News