Jane Langford v The Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lord Justice Leggatt,Lord Justice Baker |
| Judgment Date | 17 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1271 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2018/0111 AND C3/2018/0111(A) |
| Date | 17 July 2019 |
[2019] EWCA Civ 1271
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT.
UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge E. Mitchell
CAF25652015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Leggatt
and
Lord Justice Baker
Case No: C3/2018/0111 AND C3/2018/0111(A)
Chris Buttler and Raj Desai (instructed by Candey) for the Appellant
Tim Buley QC (instructed by the Government Legal Department) for the Respondent
Hearing date: 19 June 2019
Approved Judgment
(A) Introduction
This is the appeal of Mrs Jane Langford from the decision of 26 October 2016 of the Upper Tribunal (Administrative Appeals Chamber) (Upper Tribunal Judge E. Mitchell) (“the UT”) dismissing her appeal from the decision of 19 February 2014 of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) (Tribunal Judge Mark, Mr P. Powell and Mr P.F. McDougall) (“the FTT”). The FTT had dismissed Mrs Langford's appeal from the decision of the Respondent Secretary of State for Defence (“the Minister”) disallowing her claim for benefit under the Armed Forces (Compensation Scheme) Order 2011 (“the Order”) following the death in service of her long-standing partner, Air Commodore Christopher Green.
The Order, made by the Minister, pursuant to powers conferred by the Armed Forces (Pensions and Compensation) Act 2002, contained a revised benefits scheme (“the Scheme”) for dependents of members or former members whose death was caused (wholly or partly) by their service.
Mrs Langford's claim was disallowed because, notwithstanding her long relationship with the Air Commodore, she remained married to her estranged husband. In the proceedings Mrs Langford claims that the decision was unlawfully discriminatory against her.
(B) Background Facts
The facts of the case are not contentious. Air Commodore Green was a serving officer in the Royal Air Force when he died suddenly and unexpectedly on 17 May 2011. He and Mrs Langford had lived together for 15 years (from 2 November 2006) in a relationship akin to marriage. However, Mrs. Langford remained married to her husband, Mr Alan Langford, from whom she had been estranged for some 17 years. She had no financial support from her husband; she had claimed none and had no expectation of any. Late in the Air Commodore's life he and Mrs. Langford declared publicly their intention to marry and made some early investigations into securing Mrs Langford's divorce from her husband.
The unchallenged evidence of Mrs Langford is that both she and the Air Commodore believed that she would be entitled in any event, irrespective of her marital status, to survivors' benefits (and to a pension) upon his death. Mrs Langford had become a member of the Armed Forces Pension Society. However, the flaw in their belief was that the Scheme and the Armed Forces Pension Scheme (“AFPS”), while providing for benefits for the surviving partners of deceased members who are not married to a deceased member, clearly exclude from benefit partners who remain married to, or in civil partnership with, another person.
In the present proceedings, Mrs Langford claims that this exclusionary rule discriminates against her unlawfully, contrary to Article 14 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”), read in conjunction with Article 1 of Protocol 1 (“A1P1”) to that Convention.
(C) The Scheme
The relevant provisions of the Scheme are to be found in Articles 29 and 30 of, and in paragraphs 1 to 3 of Schedule 1 to, the Order as follows:
“ 29 Description of benefits—death
(1) Benefits payable for the death of a member or a former member (“the deceased”) are—
(a) a survivor's guaranteed income payment payable until death to a surviving spouse, civil partner or surviving adult dependant;
(b) a bereavement grant payable to a surviving spouse, civil partner[,] … surviving adult dependant[, or eligible child];
(c) a child's payment payable to or in respect of an eligible child.
…
30 Meaning of “surviving adult dependant”
A person is a surviving adult dependant in relation to a deceased member or former member if, at the time of the deceased's death—
(a) the person and the deceased were cohabiting as partners in a substantial and exclusive relationship;
(b) the deceased leaves no surviving spouse or civil partner;
(c) the person and the deceased were not prevented from marrying or forming a civil partnership; and
(d) either the person was financially dependent on the deceased or they were financially interdependent.
SCHEDULE 1 MEANING OF “SUBSTANTIAL AND EXCLUSIVE RELATIONSHIP”
Part 1 Substantial Relationship
1. In deciding whether a relationship of a deceased member (“the deceased”) and the claimant is a substantial relationship, the Secretary of State is to have regard to—
(a) any evidence which the claimant considers demonstrates that the relationship is substantial; and
(b) must in particular have regard to the examples of the evidence specified in paragraph 2 which could, either alone or together, indicate that the relationship is substantial.
2. The evidence referred to in paragraph 1(b) is—
(a) evidence of regular financial support of the claimant by the deceased;
(b) evidence of a valid will or life insurance policy, valid at the time of the deceased's death, in which—
(i) the deceased nominates the claimant as principle beneficiary or co-beneficiary with children; or
(ii) the claimant nominates the deceased as the principal beneficiary;
(c) evidence indicating that the deceased and the claimant were purchasing accommodation as joint owners or evidence of joint ownership of other valuable property, such as a car or land;
(d) evidence of a joint savings plan or joint investments of a substantial nature;
(e) evidence that the deceased and the claimant operated a joint account for which they were co-signatories;
(f) evidence of joint financial arrangements such as joint repayment of a loan or payment of each other's debts;
(g) evidence that the deceased or the claimant had given the other a power of attorney;
(h) evidence that the names of both the deceased and the claimant appeared on a lease or rental agreement, if they lived in rented accommodation;
(i) evidence that the deceased and the claimant shared responsibility for children;
(j) evidence of the length of the relationship.
3. A relationship is not an exclusive relationship if—
(a) one or both of the parties to the relationship is married to, or is the civil partner of, someone other than the other party to the relationship; or …
(b) one or both of the parties is a party to another relationship which is, or could be considered to be, a substantial and exclusive relationship having regard to the provisions of this Schedule.
It will be seen from those provisions that Mrs Langford's claim is excluded by Article 30(a) (as defined in Sch. 1 para. 3) and (c).
As Mr Buttler, for Mrs. Langford, pointed out the Explanatory Memorandum on the Scheme as presented to Parliament said this on the subject of the ECHR (in paragraph 6):
“6. European Convention on Human Rights
6.1 As this Instrument is subject to negative resolution procedure and does not amend primary legislation, no statement is required.”
(D) ECHR Provisions
Article 14 of the ECHR provides that the enjoyment of rights and freedoms in the ECHR
“…shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
A1P1 states:
“44. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
There is no dispute that a survivor's benefit under a scheme such as this falls within the ambit of A1P1 (and thus within the aim of Article 14) and that Mrs Langford as a person in a substantial and exclusive relationship with a scheme member, but with an estranged spouse, (subject to a small qualification) has a relevant “status” for the purposes of Article 14.
For Mrs Langford, it is argued that she is in an analogous position to the surviving partner of a substantial and exclusive (but unmarried) relationship with a Scheme member who does not have a continuing marriage to an estranged spouse. She, like such a person or a surviving spouse of a Scheme member, was in substantial and exclusive relationships and was financially dependent (wholly or partly) upon the member. For the Minister, the nature of the discrimination and the argument about it are put this way in the skeleton argument (paragraph 6):
“6. …
(i) Whether there is different treatment between the Appellant, as an unmarried partner of someone covered by the AFCS, and her chosen comparator, a married partner, on grounds of the status of being an unmarried partner? There is no differential treatment between married and unmarried partners, and certainly none that is in reference to their status as such. The rule that is challenged in these proceedings is that an unmarried partner must not by married to anyone (a third party) other than the AFCS member. Married persons are by definition subject to that very same rule, since a person who is married to a third party can never, for that reason, marry...
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