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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Jackson & Ors v The Secretary of State for Work And Pensions  EWHC 183 (Admin) (07 February 2020)
Cite as:  WLR(D) 81,  1 WLR 1441,  EWHC 183 (Admin),  WLR 1441
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) JAMES JACKSON
(2-4) JJ, TJ AND GJ
(children, by their litigation friend
(5) KEVIN SIMPSON
(6-7) KS AND DS
(children, by their litigation friend
- and –
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
MR JULIAN MILFORD and MR BEN MITCHELL (instructed by The Government Legal Department) for the defendant
Hearing date: 28 JANUARY 2020
Crown Copyright ©
MR JUSTICE HOLMAN:
Introduction and the issue
The claimants and their facts
The statutory framework
"30(4) In the case of a person who is pregnant or entitled to child benefit in specified circumstances, the regulations may –
(a) specify a higher rate;
(b) provide for the allowance to be payable for a longer period."
"38. This, as it seems to me, is the nub of the matter. 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's contributions because they were not married to one another?
39. In my view, the answer to that question is manifestly "no", at least on the facts of this case. 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."
"49… what I regard as the clear purpose of this allowance, namely to continue to cater, however broadly, for the interests of any relevant child. Refusal of the allowance to the survivor of a couple who are neither married nor civil partners cannot simply be regarded as a detriment to the survivor of the couple. Refusal would inevitably operate in a significant number of cases to the detriment of the child.
50…Bearing in mind that the main purpose of widowed parent allowance is to secure the continuing well-being of any child of a survivor, there seems in this context to be no tenable distinction, and indeed manifest incongruity in the difference in treatment, between a child of a couple who are married or civil partners and the child of a couple who are not.
52. A policy in favour of marriage or civil partnership may constitute justification for differential treatment, when children are not involved. But it cannot do so in relation to a benefit targeted at the needs and well-being of children. The fact that the widowed parent's allowance may cease or be suspended in some situations is no answer to this. The underlying thinking is no doubt that adequate support will be or is likely to be derived from another source in such situations. The provisions for cessation or suspension may not be entirely logical or reflect entirely accurately the circumstances in which adequate alternative support may be expected. But, if so, that does not appear to me to affect the analysis that widowed parent's allowance is fundamentally aimed at securing the needs and well-being of children.
53. I take the points made by Lord Hodge JSC (paras 85-87) that it is not always easy to judge how different benefits interact and how easy they may be to administer. But the position of couples who are neither married nor civil partners is already catered for in other situations known to the law. The starting point is surely that, where children are for relevant purposes in a similar situation, the law would be expected to deal with them in the same way. I am not persuaded that any substantial grounds exist for thinking that this was not and is not feasible, as well as just, in the present context."
A comparison of WPA, and BSP and HRBSP
Within the ambit?
"Pamela Nash: The Minister says that the changes are supposed to reflect modern life. However, families with parents who have decided not marry but to cohabit are excluded. In most other comparable areas of the law, those couples are now included. Why have they not been included in this legislation?
Steve Webb: The national insurance system, of which the payment is a part, has always been and remains based on legal marriage and, subsequently, civil partnership. The provisions in the single-tier pension for partners are for married partners and civil partners. All national insurance benefits to the extent that marriage is relevant, are based on marriage, not cohabitation.
I entirely take the hon. Lady's point that cohabitation is a part of modern society. She asked why we have not reflected that in the provisions. One of the biggest challenges is entirely practical. The payment is not a means-tested benefit, but when we assess a couple for mean-tested benefits, defining cohabitation is a messy business. People argue about it; they go to appeal tribunals about it; and they say, "No, we are not cohabitating because I spend only one night a week there." Sometimes we even have fraud inspectors going into people's houses and sitting outside in cars, watching what goes on. Cohabitation is not a straightforward concept when trying to write the law of the land.
It is difficult enough when the two parties are still alive. Imagine a situation where someone has died and someone else comes along and said, "I was the cohabiting partner of the person who has died. I would like a bereavement support payment." We would need some evidence of that. We do not have a marriage certificate to prove it, so the question is, what would be the nature of the proof we would seek? Would we pry, at a time of bereavement, into the nature of the relationship? Would we ask how long they had lived together or whether they slept together? What we have found in other spheres of life is that there could be multiple people who could legitimately claim to be the partner of the deceased. Trying to ask all those questions is difficult at the best of times; at a time of bereavement, it is all the more difficult.
Clearly, an option is for a cohabiting couple to marry, after which they become entitled to all those things. Who knows whether a future Government will allow civil partnerships for heterosexual couples? In that environment, that might well be the way to deal with the point that the hon. Lady raised. I could go on at much greater length. The more we think about how we might do it, the more intrusive and difficult it looks."
Victim status and standing
Declaration as to incompatibility
"Section 30(4)(a) of the Pensions Act 2014, read with section 30(1), is incompatible with Article 14 of the European Convention on Human Rights read with Article 8 in so far as it empowers the Secretary of State to order by regulations that Bereavement Support Payment be paid at a higher rate in the case of a person who is pregnant or entitled to child benefit, only if they are a spouse or civil partner of the deceased."