Daniel Richard Jwanczuk v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Elisabeth Laing LJ,Falk LJ |
| Judgment Date | 11 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1156 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001882 |
[2023] EWCA Civ 1156
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Elisabeth Laing
and
Lady Justice Falk
Case No: CA-2022-001882
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Kerr
Royal Courts of Justice
Strand, London, WC2A 2LL
Clive Sheldon KC and Zoe Gannon (instructed by the Treasury Solicitor) for the Appellant
Catherine Callaghan KC and Tom Royston (instructed by Public Law Project) for the Respondent
Hearing dates: 13–14 June 2023
Further written submissions: 19 and 28 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Wednesday, 11 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This appeal concerns a claim for bereavement support payment (“BSP”) made by the Claimant, Daniel Jwanczuk, following the death of his wife Suzanne (“Suzzi”). Suzzi was born in 1974. She suffered throughout her life from a progressive degenerative condition called Ullrich congenital muscular dystrophy, which rendered her severely disabled. She and the Claimant had known each other since they were children. They fell in love and started living together when they were young adults: they married in 2005. Although Suzzi had hopes of going into paid employment, at least in the earlier stages of her illness, she never did so. The Claimant cared for her until her death on 20 November 2020. His witness statement gives a moving account of their relationship and of her long and courageous struggle to make the most of her life despite her disabilities.
BSP is a non-means-tested contributory benefit, the purpose of which is to assist with the additional expenditure that is typically associated with bereavement. It is paid partly as an immediate lump sum, and partly by monthly payments for a period of eighteen months: it is paid at one or other of two flat rates, depending on whether the survivor has dependent children. It was introduced by the Pensions Act 2014, replacing three existing forms of bereavement benefit – bereavement payment, bereavement allowance and widowed parent's allowance. The form of the new benefit was the subject of a consultation document issued jointly in December 2011 by the Department for Work and Pensions (“the DWP”) and the Northern Ireland Department for Social Development titled Bereavement Benefit for the 21st Century.
The relevant provisions of the 2014 Act read as follows:
“30. Bereavement support payment
(1) A person is entitled to a benefit called bereavement support payment if –
(a) the person's spouse, civil partner or cohabiting partner dies,
(aa) …
(b) the person is under pensionable age when the spouse, civil partner or cohabiting partner dies,
(c) the person is ordinarily resident in Great Britain … when the spouse, civil partner or cohabiting partner dies, and
(d) the contribution condition is met (section 31).
(1A)-(1D) …
(2) The Secretary of State must by regulations specify –
(a) the rate of the benefit, and
(b) the period for which it is payable.
(3)-(7) …
31. Bereavement support payment: contribution condition and amendments
(1) For the purposes of section 30(1)(d) the contribution condition is that, for at least one tax year during the deceased's working life –
(a) he or she actually paid Class 1 or Class 2 national insurance contributions, and
(b) those contributions give rise to an earnings factor (or total earnings factors) equal to or greater than 25 times the lower earnings limit for the tax year.
(2) For earnings factors, see sections 22 and 23 of the Social Security Contributions and Benefits Act 1992.
(3) For the purposes of section 30(1)(d) the contribution condition is to be treated as met if the deceased was an employed earner and died as a result of —
(a) a personal injury of the kind mentioned in section 94(1) of the Social Security Contributions and Benefits Act 1992, or
(b) a disease or personal injury of the kind mentioned in section 108(1) of that Act.
(4) In this section the following expressions have the meaning given by section 122(1) of the Social Security Contributions and Benefits Act 1992 —
‘employed earner’,
‘lower earnings limit’,
‘tax year’, and
‘working life’.
(5) … .”
I need not elucidate all the cross-references in section 31 to the Social Security Contributions and Benefits Act 1992. It is enough to say that “working life”, as referred to in subsection (1), begins in the tax year in which the person in question attains the age of 16; that an “earnings factor”, as referred to in subsection (2), is a concept adopted by the 1992 Act in order to provide a common basis for measuring earnings; and that the “lower earnings limit” is a weekly figure the amount of which is set each year – in 2022/23 it was £123 per week.
Four points about BSP should be noted at this stage:
(1) The contribution necessary to qualify is modest. The deceased spouse 1 need only have paid national insurance contributions (“NICs”) in a single year of their working life and only on the basis of earnings of about £3,000. The contribution condition in what became section 31 (1) was described by the responsible Minister in the committee stage of the bill in the House of Commons as “probably one of the most, if not the most, relaxed contribution requirements in the system”, adding that that was in order to “ensure that we support as many people as possible”.
(2) The contribution condition is deemed to have been met if the deceased was employed and dies as a result of industrial injury or disease (together, for short, “the death at work exception”): see section 31 (3). Because of point (1), this provision will only have practical effect where the death occurs very early in the deceased's working life: once they have paid the minimum contributions the claimant qualifies anyway.
(3) The national insurance system provides for people who are not paying actual NICs in some circumstances to receive “national insurance credits”. Those circumstances include where the person in question is in receipt of disability benefits but they extend to a much wider group, including for example the unemployed, carers and those in training. Credits count primarily towards state pension entitlement. They do not count toward BSP because section 31 (1) requires NICs to have been “actually paid”.
(4) The bereavement benefits which were replaced by BSP were also contributory but the detailed contribution requirements varied between them. In the case of bereavement allowance and widowed parent's allowance the requirement could be satisfied by the receipt of national insurance credits: actual payment of NICs was not a condition.
Apart from the devastating personal impact on the Claimant, Suzzi's death caused him real financial difficulties. He lost his income as a carer. The income from the benefits that she had been receiving also ceased to come in. He applied for BSP. This was refused because he could not satisfy the contribution condition since Suzzi had never paid NICs. That refusal was maintained by the DWP in a reconsideration decision dated 6 October 2021. If the Claimant had been found to be eligible the total amount of benefit payable would have been £4,300.
In January 2022, with the assistance of Public Law Project, the Claimant began judicial review proceedings against the Secretary of State for Work and Pensions claiming that the absence of an entitlement to BSP in cases where the deceased spouse had been unable to work as a result of disability constituted a breach of article 14 of the European Convention on Human Rights, read with article 8 and article 1 of Protocol 1 (“A1P1”). He relied principally on the decision of the Northern Ireland Court of Appeal in O'Donnell v Department for Communities [2020] NICA 36, which upheld a claim challenging the same rule under the Northern Ireland benefit legislation.
The Claimant also appealed against the Secretary of State's decision to the First-tier Tribunal (“the FTT”), but that appeal has been stayed by consent.
By a decision handed down on 7 September 2022 ( [2022] EWHC 2298 (Admin), [2023] 1 WLR 711) Kerr J upheld the Claimant's claim. Applying section 3 of the Human Rights Act 1998, he held that it was possible to construe the 2014 Act in such a way as to treat the contribution condition as having been met “if the deceased was unable to comply with section 31 (1) throughout her working life due to disability”; and he made a declaration in those terms. He made no finding as to whether Suzzi had in fact been unable to earn due to her disability, on the basis that that was a question properly to be decided in the FTT proceedings. I will refer to his reasoning in more detail later. At this stage it is enough to say that he believed that the decision in O'Donnell was indistinguishable and that he ought to follow it.
This is an appeal against that decision, with permission granted by Kerr J himself. The Claimant has been represented by Catherine Callaghan KC and Tom Royston and the Secretary of State by Clive Sheldon KC and Zoe Gannon. All counsel also appeared before Kerr J. Without wishing to discount the contributions of junior counsel, I will for convenience refer to the skeleton arguments as if they were the work of leading counsel only.
ARTICLE 14 AND THE HUMAN RIGHTS ACT
I need not say much at this stage about the scope and application of article 14 of the Convention and the relevant provisions of the 1998 Act, but I should record the basics.
Article 14 is headed “Prohibition of discrimination” and...
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