R (on the application of Jwanczuk) v Secretary of State for Work and Pensions [2025] UKSC 42

Mr Jwanczuk was refused a bereavement support payment because his severely disabled late wife had never paid national insurance contributions. The Supreme Court held that the contribution condition was justified, not discriminatory, and that appellate courts need not follow cross-jurisdictional decisions they consider wrong.

Background

Bereavement Support Payment (BSP), introduced by the Pensions Act 2014, is a non-means-tested contributory benefit payable to the surviving spouse or partner of a person who dies on or after 6 April 2017. Under section 31(1), the ‘contribution condition’ requires that, for at least one tax year during the deceased’s working life, he or she actually paid Class 1 or Class 2 national insurance contributions giving rise to an earnings factor of at least 25 times the lower earnings limit. National insurance credits and voluntary Class 3 contributions do not count. The only express exception, in section 31(3), applies where the deceased was an employed earner who died from an industrial injury or disease.

The respondent, Daniel Jwanczuk, was married to Suzzi Jwanczuk, who had Ullrich congenital muscular dystrophy and was severely disabled. She never worked and never paid relevant contributions. She received incapacity-type benefits throughout her working life, and the respondent cared for her until her death in November 2020, aged 45. His claim for BSP (totalling £4,300) was refused because the contribution condition was not met. Whether she was in fact unable to work throughout her working life had not been determined and would, if necessary, be resolved in the First-tier Tribunal.

The respondent contended that applying the contribution condition to him amounted to Thlimmenos discrimination contrary to article 14 read with A1P1. On his case, his wife, and he by association, was treated in the same way as people who chose not to work, and an exception should be read into the legislation under section 3 of the Human Rights Act 1998 (HRA).

In O’Donnell v Department for Communities [2020] NICA 36, the Northern Ireland Court of Appeal had held that the identical contribution condition in the Pensions Act (Northern Ireland) 2015 unlawfully discriminated in this way, that the policy as applied to such persons was manifestly without reasonable foundation, and that the provision could be read down. Kerr J followed O’Donnell. The Court of Appeal, applying the rule in Abbott v Philbin [1960] Ch 27, held that it should follow O’Donnell unless it was clearly wrong or there were compelling reasons, in an exceptional case, to depart from it. Despite expressing doubts on justification and remedy, it declined to depart from the decision. The Secretary of State appealed.

The issues

• Ground 1: What weight should the senior courts of England and Wales give to a decision of the Northern Ireland Court of Appeal (and vice versa) on identical legislation? Was the ‘clearly wrong’ or ‘compelling reasons’ threshold too high?
• Ground 2: Was being the surviving spouse of a person unable to work throughout her working life by reason of disability a valid ‘other status’ under article 14?
• Ground 3: Was the failure to make an exception to the contribution condition objectively and reasonably justified, and with what intensity of review?
• Ground 4: If the condition was incompatible, could section 31(1) be read down under section 3 HRA, or was a declaration of incompatibility under section 4 the only available remedy?

The Court’s reasoning

Lord Reed and Lady Simler gave the judgment, with which the other members of the Court agreed.

Ground 1: decisions of appellate courts in other UK jurisdictions

The Court emphasised that this is a matter of practice based on comity and good sense, not of the common law of precedent. Precedent is confined to each jurisdiction’s own hierarchy of courts, a point explained by Laws LJ in Marshalls Clay Products Ltd v Caulfield. Decisions from other UK appellate courts carry persuasive authority. Their weight depends principally on how convincing the reasoning is and on whether practical problems would follow if they were not followed.

The Court surveyed the varying practice. In criminal law, Scottish and English courts have diverged without significant practical difficulty. The Northern Ireland courts have historically leaned towards following the English Court of Appeal, particularly on detailed questions of construction. The strict rule in Abbott v Philbin applies in revenue law, where uniformity carries particular constitutional and economic importance. The Court rejected Ward LJ’s reasoning in Deane v Secretary of State for Work and Pensions, which had extended that approach beyond tax. It noted that in Deane, in the present case and in Augustine v Data Cars Ltd, the extension had simply been assumed. The Court stressed:

However, in principle it is even more important that statutory provisions should be interpreted correctly than that they should be interpreted consistently.

Devolution was a further relevant factor. Justification issues under the HRA generally depend on legislative choices made in the conditions of the particular jurisdiction. The relevant government bodies may also differ: the Secretary of State had not been a party to O’Donnell. The Court concluded that the arguments did not justify extending the strict Abbott v Philbin approach beyond the interpretation of tax statutes, and held:

However, appellate courts should not regard themselves as being under an obligation to follow decisions which they consider to be wrong. They do not require to identify some other compelling reason for departing from a wrong decision. They do not have to identify exceptional circumstances. It is better that they should explain clearly why they consider the decision to be incorrect, give what they consider to be the correct decision, and grant leave to appeal to this court so that the difference of views can be resolved without undue delay.

The Court of Appeal had therefore erred. Three features reinforced the point:

• The Secretary of State had chosen not to align English and Welsh policy with O’Donnell, so consistency was not regarded by those responsible for the system as of overriding importance.
• The judgment in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 post-dated O’Donnell and bore significantly on its correctness.
• No serious consequences would have followed from departing from O’Donnell.

Ground 2: other status

The Court rejected the Secretary of State’s arguments that the claimed status was subjective, lacked independent character and could not be objectively ascertained. Associative discrimination is well recognised. The Court stated:

Being a person permanently unable to work (and therefore to make contributions) through disability is a socially and economically significant personal characteristic.

The criterion is binary: either the deceased was unable to work throughout her working life or she was not. It can be determined from evidence pre-dating death. The need for an evaluative judgement is not peculiar to this status, as illustrated by disability itself, cohabitation (In re McLaughlin) and the statuses recognised in R (MA). Incapacity for work has long been assessed for benefits purposes under a test of whether a person can reasonably be expected to work, not one of impossibility. The Court agreed with Underhill LJ:

We agree with Underhill LJ that an evaluative exercise of the necessary kind can properly be described as objective provided that it consists of a rational evaluation of objectively established facts.

The Secretary of State’s concerns about administrative difficulty and the absence of a reliable proxy were more relevant to justification than to status. The Court was confident that Strasbourg would recognise the status.

Ground 3: justification

Applying the Bank Mellat framework and the nuanced approach to intensity of review set out in SC, the Court accepted three aims as legitimate and rationally connected to the condition:

• rewarding work through the contributory principle, which reduces stigma;
• administrative simplicity through a bright line rule;
• certainty of entitlement.

It held:

In our view the starting point is that the widest margin of appreciation is ordinarily appropriate in a case such as this.

The measure was primary legislation in the social and economic sphere. It was recently enacted following a consultation in which its impact on people unable to work through disability was expressly raised, and there was no common European standard. The respondent’s reliance on disability as a suspect ground did not materially narrow the margin:

The disentitlement to BSP is not based on disability itself and the connection between disability and disentitlement is relatively weak.

Most disabled people can meet the modest threshold. The condition does not inhibit labour market participation or reflect legislative stereotyping. BSP is not an income replacement benefit, and a non-contributory safety net exists. The death at work exception is consistent with the contributory principle, because it applies only to those in employment and potentially liable to pay contributions. The modest level of contribution emphasised, rather than diminished, the importance Parliament attached to the principle. On bright line rules, the Court said:

In principle it may be justifiable for the administrative workability of a bright line rule to outweigh the unfairness to some who may be excluded by it.

Any exception would require individualised, retrospective, lifelong evaluation of capacity to work, and no single proxy was available. The working of the Northern Ireland scheme did not alter this, since Parliament was entitled to draw a bright line. The Court also rejected three further arguments:

• that the legislation was retrogressive;
• that it was illogical to accept national insurance credits for pensions but not for BSP;
• that Parliament had failed to consider the position of those permanently unable to work.

On the last point, the consultation response presented to Parliament showed the issue had been raised. Ministerial submissions, however, were of no assistance in determining the intention of the legislature. The Court observed:

The making of a single exception by Parliament indicates a careful and conscious legislative policy choice which should be respected.

As in SC, there were no legal standards by which a court could strike the balance, and democratically elected institutions were better placed to do so. The Court concluded that the failure to make an exception was reasonably and objectively justified, and that the severity of its effect was outweighed by the importance of the objectives.

Ground 4: remedy (obiter)

Although this issue was academic, the Court held that reading in an exception would not be ‘possible’ under section 3 HRA. It would not go with the grain of the legislation, applying Ghaidan v Godin-Mendoza. The actual payment of contributions is fundamental to the scheme, and Parliament expressly excluded credits and Class 3 contributions. The death at work exception preserves the policy of rewarding work:

It cannot be treated as a gateway to a much broader exception for those who have never worked (for whatever reason) under section 3 of the HRA.

Practical significance

The decision has two main consequences.

• Cross-jurisdictional precedent: It confines the strict Abbott v Philbin rule to tax statutes. In other fields, including social security, employment and Convention rights, appellate courts across the UK should treat each other’s decisions with great respect but must depart from them if they consider them wrong, and should grant permission to appeal to the Supreme Court. This disapproves the wider approach taken in Deane, in the Court of Appeal in this case, and in Augustine v Data Cars Ltd.
• Article 14 and welfare benefits: It confirms a broad approach to ‘other status’, including associative, disability-related statuses requiring evaluative judgement. It also reinforces SC: where welfare legislation follows a considered parliamentary choice, a wide margin applies even where disability is engaged, if the link between disability and disentitlement is weak. Bright line contributory rules will readily be upheld.

The Court acknowledged the harshness of the result but concluded:

There is no proper basis, consistent with the separation of powers, on which to overturn Parliament’s judgement.

The decision also leaves the law in England and Wales divergent from Northern Ireland, where O’Donnell and the Department for Communities’ guidance continue to operate.

Verdict: The Secretary of State’s appeal was allowed. The Supreme Court held as follows:
(1) The Court of Appeal erred in applying the strict Abbott v Philbin practice outside tax law. It should have departed from O’Donnell if it considered that decision wrong.
(2) The respondent had a valid ‘other status’ for the purposes of article 14.
(3) The contribution condition in section 31(1) of the Pensions Act 2014, applied without an exception for the spouses of those unable to work throughout their working lives due to disability, was objectively and reasonably justified, so there was no breach of article 14 read with A1P1.
(4) Obiter, section 31(1) could not in any event have been read down under section 3 of the HRA.
The respondent is not entitled to Bereavement Support Payment because Mrs Jwanczuk paid no actual contributions during her working life.

Source: R (on the application of Jwanczuk) v Secretary of State for Work and Pensions [2025] UKSC 42