James Jackson v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 07 February 2020 |
| Neutral Citation | [2020] EWHC 183 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/975/2019 |
| Date | 07 February 2020 |
[2020] EWHC 183 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holman
Case No: CO/975/2019
Ms Helen Mountfield QC and Mr Tom Royston (instructed by Child Poverty Action Group) for the claimants
Mr Julian Milford and Mr Ben Mitchell (instructed by The Government Legal Department) for the defendant
Hearing date: 28 JANUARY 2020
Approved Judgment
Introduction and the issue
Higher rate bereavement support payment may be payable to the surviving parent if his or her spouse or civil partner dies and there is one or more dependent child. It cannot be paid to the surviving parent if his or her non-married cohabitee or non-civil partner dies, no matter how long or settled the cohabitation. The claimants in this case claim that that unjustifiably discriminates against the surviving parent and/or the child or children in a cohabiting relationship, on the ground of the non-married status, or, in the case of the child, his or her birth, in a way prohibited by Article 14 of the European Convention on Human Rights (the Convention). The claimants seek a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998.
In this judgment “WPA” means widowed parent's allowance which was (and still is) payable under section 39A of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) in respect of deaths occurring on or before 5 April 2017, if (simplifying) the surviving spouse or civil partner has a child or children. Since WPA may, in certain circumstances, be payable until a child attains the age of 20, WPA may continue to be paid for many years even although there can be no new claims in respect of deaths occurring on or after 6 April 2017. “BSP” means bereavement support payment which is payable under section 30 of the Pensions Act 2014 (the 2014 Act) to the surviving spouse or civil partner in respect of deaths occurring on or after 6 April 2017. “HRBSP” means higher rate bereavement support payment which is payable, at a higher rate, to a qualifying surviving spouse or civil partner if (simplifying) he/she has a child or children. HRBSP is provided for by the Bereavement Support Payment Regulations 2017, SI [2017] No. 410 (“the regulations”) which are made pursuant to section 30 of the 2014 Act.
Both section 39A(1)(a) of the 1992 Act and section 30(1)(a) of the 2014 Act limit the entitlement to WPA or BSP respectively to the surviving spouse or civil partner after the death of his or her spouse or civil partner. A surviving cohabitee or partner (other than a civil partner) could not claim WPA, and a surviving cohabitee or partner cannot claim BSP (nor HRBSP if he/she has a child or children) no matter how long and enduring the cohabitation nor how many children the cohabiting couple may have had.
In Re: McLaughlin [2018] UKSC 48, on appeal from Northern Ireland but considering identical WPA legislation to the 1992 Act, the majority of the Supreme Court held and declared, in judgments handed down on 30 August 2018, that that legislation is incompatible with Article 14 of the Convention, read with Article 8, in so far as it precludes any entitlement to WPA by a surviving unmarried partner of the deceased. (That shorthand declaration is not, with respect, quite accurate, since entitlement to WPA is not precluded in relation to an unmarried partner who was in a civil partnership with the deceased.)
The claimants in the present claim contend that there is, in relation to this issue, no material distinction between WPA and HRBSP, payable in cases where there is a child or children, and that, for the reasons given by the majority of the Supreme Court in McLaughlin, which are, of course, binding upon me, the 2014 Act and the regulations, when considered together, are also incompatible with the Convention in so far as they preclude entitlement to HRBSP (viz where there is a child or children) by a surviving unmarried (or not in a civil partnership) partner or cohabitee of the deceased.
Neither the word “cohabitee” nor the word “partner” have any precise definition in law and, indeed, one of the issues in this case lies in the difficulty of establishing when a relationship exists which can be characterised as that of “cohabitee” or “partner” (not being in a civil partnership). Further, the choice of terminology may be quite subjective to the couple themselves. Cohabitation (living together) may be largely a question of fact, but requires a certain duration. Whether a relationship amounts to that of “partner” is essentially a matter of subjective choice. These semantic and philosophical distinctions do not affect the substance of the present case and I propose to refer throughout to “cohabitee” without further defining the term, but recognising that it requires a certain degree of duration although not necessarily permanence.
The defendant Secretary of State for Work and Pensions (the SSWP) contends and submits that there are material differences between WPA and BSP, or HRBSP, and between the respective statutory schemes, such that the reasoning in McLaughlin does not apply and that the 2014 Act and regulations are compatible with the Convention.
The issue in this case is, in short, is section 30(1)(a) of the 2014 Act, read with regulation 4 of the regulations (which makes provision for HRBSP), incompatible with the Convention?
The claimants and their facts
The first claimant is Mr James Jackson, who lives in Nottingham. He is now aged 40. He met Natalie, whom he describes as his “partner”, in 2001. They moved in together into a council flat in their joint names in late 2004/early 2005. He was then aged 25 and she was 20. They lived together seamlessly from then until her sudden death in October 2018. They had three children together, who are now aged 13, 8 and 4. Those children lived with the couple together and continue now to live with Mr Jackson, their father. Mr Jackson says that he was “simply not interested in getting married” which seemed to him an unnecessary waste of money just for one day [viz the wedding] and would not change the relationship between Natalie and himself. But he says that marriage was important to her, and in 2014 he agreed to marrying “once we could afford it”. Mr Jackson says that it was only in early summer 2018 that he felt that his financial prospects were sufficiently secure to be able to propose to Natalie. They planned on actually marrying in late summer 2019. On 7 October 2018 Natalie, who had not previously had any health issues, died suddenly. Mr Jackson says that her death “was completely unexpected and I was completely unprepared for it.” A welfare rights adviser informed Mr Jackson about BSP and he promptly applied for it. His claim was rejected on 29 October 2018 on the (correct, having regard to the statute) ground that he and Natalie had not been married to each other nor in a civil partnership. Mr Jackson says in his statement that “when I received the decision… I was disappointed and felt it was unfair. Somebody who had only been married for 6 months could qualify whereas having lived together with Natalie for almost 14 years and having three children together apparently counted for nothing.”
Currently, Mr Jackson is not working. He is receiving housing benefit, employment support allowance, child tax credit and child benefit. He says that “we are just about managing on this but it is inevitably tight.”
Mr Jackson's three children have been named as the second, third and fourth claimants to this claim.
The fifth claimant is Mr Kevin Simpson, who lives in Chester. He is also aged 40. He first met Deborah when they were both teenagers. Her age or date of birth are not stated but I infer that she was broadly of a similar age to him. In 2008 they moved in together. Their elder child was born in 2010 and is now aged 9. Deborah then suffered breast cancer for which she was treated “and made a full recovery.” Their second child was born in 2012 and is now aged 7. They all lived together. Mr Simpson says that on 5 November 2015, bonfire night, he proposed to Deborah. After this the wedding was often talked about but they had no specific date in mind, partly because Deborah could not decide whether she wanted “a large traditional wedding” or a small one. But Mr Simpson says that “events took over and marriage was pushed to the back of our minds” when, in December 2016, Deborah was again diagnosed with breast cancer. She died on 7 March 2018. The children continue to live with Mr Simpson. The hospice advised Mr Simpson to apply for BSP. His claim was refused on 9 April 2018. He made a further application which was again refused on 11 December 2018, on the ground that he was not married to, nor in a civil partnership with, Deborah. Mr Simpson describes a considerable financial struggle since Deborah died. Mr Simpson's two children have been named as the sixth and seventh claimants.
The statutory framework
No issue arises as to construction in this case and it is not necessary to set out verbatim the relevant statutory provisions. There are further qualifying pre-conditions, but the essential one for the purpose of this case is that under both section 39A(1) of the 1992 Act, in the case of WPA, and section 30(1) of the 2014 Act, in the case of BSP, “a person's spouse or civil partner” dies. It is common ground that it is impossible to construe either enactment as extending to cohabitees, non-civil partners, or any other relationship or status than that of spouse or...
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