HM v Secretary of State for Work and Pensions (BB); MK v Secretary of State for Work and Pensions (BB)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2023] UKUT 15 (AAC),[2023] UKUT 15 (AAC) |
| Subject Matter | Bereavement,death benefits - bereavement payments,Human rights law - article 14 (non-discrimination),Ward,C |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 31 January 2023 |
HM v SSWP (BB); MK v SSWP (BB)
[2023] UKUT 15 (AAC)
1
IN THE UPPER TRIBUNAL Appeal Nos. UA-2019-000638-BB
ADMINISTRATIVE APPEALS CHAMBER UA-2020-001686-BB
(Previously CG/2212/2019 and CG/769/2020)
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Between:
In UA-2019-000638-BB: HM Appellant
- v –
Secretary of State for Work and Pensions Respondent
In UA-2020-001686-BB: MK Appellant
- v –
Secretary of State for Work and Pensions Respondent
Before: Upper Tribunal Judge Ward
Hearing dates: 27 and 28 June 2022
Representation:
Appellants: For HM: Stephen Cottle and Desmond Rutledge, both acting pro
bono, instructed by Hackney Community Law Centre
For MK: Joshua Yetman, as pro bono counsel on behalf of the
Free Representation Unit
Respondent: Julian Milford KC and Jen Coyne, instructed by the Government
Legal Department
DECISION
The decision of the Upper Tribunal is as follows:
1. The claimants were not discriminated against on the ground of marital status
contrary to art.14 ECHR, taken with art.8 or A1P1. They were not in an analogous
position to a person who had been married to, or in a civil partnership with, their
HM v SSWP (BB); MK v SSWP (BB) [2023] UKUT 15 (AAC)
HM -v- SSWP Case no: UA-2019-000638-BB
MK v SSWP Case no: UA-2020-001686-BB
2
deceased partner. SSWP v Akhtar binds the Upper Tribunal so to hold. If it does
not, the Upper Tribunal would reach that conclusion in any event. If, contrary to the
Upper Tribunal’s view, the claimants were in such an analogous position, the
difference in treatment is justified.
2. The requirement that a person who, with no eligible children, makes a claim for
bereavement payment and/or for bereavement allowance must have been married or
in a civil partnership to be eligible, based on official statistics, impacts more on
women than on men and so requires to be justified.
3. The Secretary of State has provided sufficient justification for the measure
resulting in the differential impact set out at [2] above.
4. The asserted wish of MK and HM to enter into a civil partnership with their
respective (opposite-sex) partners at the material time when it was legally impossible
to do so involved a difference of treatment on the grounds of sexual orientation
compared with a person with a same-sex partner who at that time was legally able to
enter into either marriage or a civil partnership (as in R(Steinfeld) v Secretary of State
for International Development [2020] AC 1), but, irrespective of the matters at [5]
below, the Upper Tribunal, not being included in the list in s.4(5) of the Human Rights
Act 1998, has no jurisdiction to make a declaration of incompatibility in respect of
such discrimination.
5. The Upper Tribunal, obiter:
(a) applying dicta in Wilson v First County Trust Ltd (No.2) [2002] UKHL 40
considers that section 4 of the 1998 Act 1998 does not permit a declaration of
incompatibility to be made where following an earlier declaration of incompatibility the
legislation has been amended by Parliament (even if it were considered to remain
incompatible with the Convention in its amended form);
(b) concludes that the appellants would need to be able to fulfil the “victim”
requirement in s.7(7) of the 1998 Act but can do so.
6. For the reasons in [1] – [4], the appeals are dismissed.
REASONS FOR DECISION
1. The structure of this decision is as follows:
Introduction [2 – [6]
Key bereavement benefit legislation [7] – [10]
Summary of the grounds of appeal [11] – [15]
The witness evidence [16] – [38]
Ground 1: discrimination on ground of marital status [39] – [79]
Ground 2: indirect discrimination on ground of gender [80] – [95]
Ground 3: discrimination on ground of sexual orientation-[96] – [123]
whether any remedy available
HM v SSWP (BB); MK v SSWP (BB) [2023] UKUT 15 (AAC)
HM -v- SSWP Case no: UA-2019-000638-BB
MK v SSWP Case no: UA-2020-001686-BB
3
Justification [124] – [163]
Concluding remarks [164] – [165]
Introduction
2. In these cases the appellants seek to challenge the respondent’s refusal to award
them bereavement benefits following the deaths of their late partners, with whom
they were in long-term relationships but not legally married. Without disrespect to
any of the individuals involved, I shall refer for brevity to the appellants by their initials
and likewise to their late partners. HM’s partner was MS. MK’s partner was LM.
3. MS died in late 2015. HM claimed on 9 November 2015. Her claim was refused
by the respondent on 25 February 2016 and that refusal was upheld by the First-tier
Tribunal (“FtT”). On 21 February 2018, the Upper Tribunal allowed HM’s appeal and
remitted the case to the FtT. On 8 May 2019 the FtT dismissed the appeal and on 12
March 2021, following an oral hearing, I gave permission to appeal.
4. LM died on 14 December 2016. MK’s claim was received on 23 February 2017.
Her claim was refused by the respondent on 3 March 2017. The refusal was upheld
by the FtT on 19 February 2018 but that decision was set aside. On 23 September
2019 the refusal was again upheld by the FtT and on 1 May 2020 a judge of the FtT
gave permission to appeal.
5. In neither case was the appellant responsible for a qualifying child at the time.
Their claims, accordingly, were for a bereavement payment under section 36 of the
Social Security Contributions and Benefits Act 1992 (“the SSCBA”) and for a
bereavement allowance under section 39B.
6. The cases are two of a small number of cases in the Upper Tribunal raising a
similar point. In the other cases, the claimants do not have the advantage of the
representation which is available to HM and to MK and those other cases are stayed
behind these.
The key bereavement benefit legislation (as it then stood)
7. Section 36 provided at the time of the decision in HM’s case:
36.— Bereavement payment.
(1) A person whose spouse or civil partner dies on or after the appointed
day shall be entitled to a bereavement payment if—
(a) either that person was under pensionable age at the time when the
spouse or civil partner died or the spouse or civil partner was then not
entitled to a Category A retirement pension under section 44 below; and
(b) the spouse or civil partner satisfied the contribution condition for a
bereavement payment specified in Schedule 3, Part I, paragraph 4.
(2) A bereavement payment shall not be payable to a person if that person
and a person whom that person was not married to, or in a civil partnership
with, were living together as a married couple at the time of the spouse's or
civil partner's death.
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