Under the Northern Ireland legislation in force when her partner died, Siobhan McLaughlin could not receive widowed parent’s allowance because they had never married. The majority asked why a benefit intended to help a surviving parent care for children depended on the parents’ marital status.
The allowance and the earlier decisions
Widowed parent’s allowance was a contributory, non-means-tested benefit. It could add to the income of a working parent, although it was taxable. Section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, in the form in force when Mr Adams died, required the survivor to be under pensionable age and the spouse or civil partner of someone who had met the contribution conditions. The survivor also had to be receiving child benefit for a relevant child or qualifying young person, or be pregnant in specified circumstances. Payment stopped on remarriage, a new civil partnership, or cohabitation as if married or in a civil partnership.
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The deceased had paid sufficient National Insurance contributions. The surviving parent met the other material conditions for the allowance. The challenge to refusal ultimately came before the Supreme Court on the marriage condition.
Family life and an analogous situation
Article 14 is not a general equality guarantee. It applies where the facts fall within another Convention right and people in an analogous situation are treated differently on a relevant ground without justification. Lady Hale, with whom Lord Mance, Lord Kerr and Lady Black agreed, held that refusal of this contributory benefit fell within the protection of property and also within respect for family life. The state need not create the allowance, but it is paid only because the survivor is responsible for children and is receiving child benefit. It is one way in which the state shows respect for children and their family. Not being married can be a status for this purpose.
Whether two people are in an analogous situation depends on the purpose of the measure. Marriage and cohabitation are not always comparable. For the bereavement payment, Treacy J had treated the absence of a public legal commitment as a real difference, and that conclusion was not appealed. For the allowance, the majority agreed with him that the shared feature was bringing up children. The allowance exists to reduce the financial loss to a family with children when a parent dies. That loss is the same whether or not the parents were married. Had they been married, the household would have had significantly more to live on while the carer was in work.
Why the marriage condition was not justified
Promoting marriage and civil partnership was a legitimate aim, and those relationships are privileged in a few contributory benefits. The majority nevertheless held that the exclusion was manifestly disproportionate, at least where, as here, the couple had lived together for many years, the Department had recognised that relationship for other purposes, and they were the parents of all the children. Their responsibilities, and the family’s loss, did not depend on marriage. Lady Hale treated the exclusion as inconsistent with the United Kingdom’s international obligations concerning children, including the child’s best interests and access to social security, including social insurance, without discrimination based on birth or other status. She also noted that most Council of Europe states pay a survivor’s pension directly to the child regardless of birth status, and that the United Kingdom is unusual in channelling this support through the parent.
The majority did not treat the Strasbourg decision in Shackell, which had declared a similar complaint by an unmarried mother inadmissible, as decisive. The purpose of this allowance had to be examined separately. Lord Mance added that its refusal would harm the child in a significant number of cases, and that a preference for marriage could not justify a benefit aimed at children’s needs and well-being.
The majority did not say that every exclusion of an unmarried partner would be incompatible. Another arrangement, such as a child for whom only the survivor was responsible, might turn on its own facts. It was enough that the rule would inevitably operate incompatibly in a legally significant number of cases. The Court heard no argument on the bereavement support payment which replaced the allowance for deaths after March 2017, and did not decide whether that later scheme is compatible. The old law would remain relevant to earlier deaths. A declaration of incompatibility does not itself change the legislation.
Lord Hodge’s dissent
Lord Hodge would have dismissed the appeal. He read the Strasbourg cases as treating marriage as a special status, so that a cohabiting survivor is not analogous to a spouse or civil partner for this benefit. He agreed that the allowance touched family life, but saw it as taxable income replacement for the survivor rather than a children’s benefit. Its rate does not depend on the number or needs of the children. It can cover a child for whom the deceased was not responsible, and it ends if the survivor reaches pensionable age, remarries, forms a civil partnership or cohabits, even while responsibility for the children continues. In his view, using the allowance to promote marriage was proportionate, and the design of support for bereaved children was a matter for the legislature.
Verdict: By four votes to one, the Court allowed the appeal and declared section 39A incompatible with article 14, read with article 8, insofar as it excluded a surviving unmarried partner from any entitlement to widowed parent’s allowance. It did not order payment or decide the position under the replacement benefit.
