Margaret Kelly v Secretary of State for Work and Pensions

Hearing dates: 6 and 7 March 2024

Written submissions: 11 and 14 March 2024

APPROVED JUDGMENT

This judgment was handed down remotely at 11.00am on 5 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Appellant, Ms Kelly, made a claim for bereavement benefits under sections 36 and 39B of the Social Security Benefits and Contributions Act 1992 (‘the 1992 Act’). The Secretary of State refused that claim on the grounds that Ms Kelly was not married or in a civil partnership. She appealed. Her appeal was heard by the Upper Tribunal (Administrative Appeals Chamber) (‘the UT’) (Upper Tribunal Judge Ward) in June 2022.

This is an appeal from the UT's decision on two joined appeals, one of which was Ms Kelly's. The background is that after 2014 homosexual couples could enter a civil partnership, and could get married, but heterosexual couples could only get married. It has now been recognised that that position was discriminatory, and that has been remedied by legislation. Ms Kelly nevertheless asks this court to make a declaration that sections 36 and 39B of the Social Security Contributions and Benefits Act 1992 (‘the 1992 Act’) are incompatible with her Convention rights.Sections 36 and 39B have been largely repealed, but are still in force, pursuant to transitional provisions, and for very limited purposes, as I will explain.

Lewis LJ gave permission to appeal on three grounds. Ms Kelly abandoned grounds 2 and 3 in her skeleton argument for this appeal. Ground 1 is that because the UT was not able to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (‘the HRA’), Ms Kelly has been left without an effective remedy despite ‘a finding that section 36 and 39B of [the 1992 Act] discriminate against her on the basis of her different-sex sexual orientation, contrary to’ article 14 of the European Convention on Human Rights (‘the ECHR’) read with article 8 of the ECHR. Lewis LJ interpreted this ground of appeal as an argument that this court should, on an appeal, make a declaration of incompatibility in circumstances when the court below had no power to do so.

For the reasons given in this judgment I have decided that the current legislation is not incompatible with Ms Kelly's Convention rights and that, if for any reason I am wrong about that, that this court should, nevertheless, not make a declaration of incompatibility.

The facts

Ms Kelly was in a long-term relationship with, but not married to, her male partner, Luke McCormick. He died on 14 December 2016. Her claim for bereavement benefit was received on 23 February 2017. It was refused on 3 March 2017.

Ms Kelly appealed to the First-tier Tribunal (‘the F-tT’), which dismissed her appeal. The UT set aside the F-tT's decision. The F-tT again dismissed Ms Kelly's appeal, and she appealed to the UT again.

The UT noted that Ms Kelly could have got married ‘— in a civil ceremony if not in church — at any time from 2000, but chose not to for personal reasons’. As the UT noted, between 2005 and 2014, a same-sex couple could enter a civil partnership, and an opposite-sex couple could get married. There was a form of parity. After 2014, a same-sex couple could also get married, but an opposite-sex couple could not enter a civil partnership. In paragraph 119, it said that ‘the evidence is sufficient to demonstrate that there was a real risk that the appellants would (with their partners) have entered into civil partnership had that choice not been withheld from them’.

The UT's reasoning

In paragraph 98, the UT said that Ms Kelly's ‘complaint (and the only way in which a viable discrimination complaint on this ground can be formulated) in essence is that she was denied the opportunity to meet the “spouse or civil partner condition” by whichever of those routes she preferred, when between 2014 and 2019 a same-sex couple would have had that choice’. The UT agreed with Mr Milford KC (who represented the Secretary of State in the UT) that in essence that was the same complaint as in Steinfeld v Secretary of State for International Development[2018] UKSC 32; [2020] AC 1 ( Steinfeld). The claimants in that case also wanted, for personal reasons, to formalise their relationship, but not to get married. As the UT put it, ‘Between 2014 and 2019 same-sex couples had a choice of ways to have their relationship formally recognised, a choice which was not open to opposite-sex couples’. The Secretary of State did not submit to the UT that that discrimination was justified (UT, paragraph 99).

The UT decided, among other things, and the Secretary of State did not dispute it, that there was discrimination on the grounds of sexual orientation between the claimants and same-sex couples, as found in Steinfeld.

The UT decided, rightly, that it had no jurisdiction to make a declaration of incompatibility. Though ‘hesitant about defining the extent of a jurisdiction which [the UT] does not itself possess’, and recognising that its observations would be obiter, it decided, having heard submissions on the question, that it was nevertheless ‘appropriate to do so’ (paragraph 101). The UT's view was that a court should not ‘make a further declaration of incompatibility in respect of the incompatibility of article 14ECHR with article 8…which would essentially mirror that made in Steinfeld which was considered (and subsequently acted upon by Parliament)' (paragraph 121). In paragraph 123, the UT made it clear that it was not expressing any view about how a higher court should exercise any discretion under section 4.

The legislative framework

The relevant provisions of the HRA

Section 1(1) of the HRA defines ‘the Convention rights’ as ‘the rights and fundamental freedoms set out in (a) Articles 2–12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) Article 1 of the Thirteenth Protocol’. That definition does not include article 13, the right to an effective remedy. I assume that article 13 is omitted because Parliament considered that on and from commencement, the HRA was to be the source of any remedy for any breach of Convention rights, so that article 13 was superfluous in the domestic scheme. That assumption is confirmed by the carefully crafted remedial scheme for which the HRA in fact provides, to which I describe in paragraphs 13, and 15–20, below. That assumption is also supported by the reasoning of Lord Hope in Brown v Stott[2003] 1 AC 681 at page 35D-F. The other members of the Appellate Committee agreed with that part of his reasoning. It is also supported by the reasoning of Lord Nicholls (with whom the other members of the Appellate Committee agreed) in Re S (Minors) (Care Order: Implementation of Care Plan[2002] UKHL 10; [2002] 2 AC 291 (in particular, at paragraphs 60–64).

Section 2 deals with the interpretation of Convention rights.Section 3(1) creates an obligation to read primary legislation and subordinate legislation ‘in a way which is compatible with Convention rights’.

In any proceedings in which a court decides whether a provision of primary legislation is compatible with a Convention rights, ‘[i]f the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility’ (section 4(1) and (2)).Section 4(3) and (5) make provision for proceedings in which the issue is whether a provision of subordinate legislation is compatible with a Convention right.Section 5(5) defines ‘court’ for the purposes of section 5. The definition includes, in England and Wales, this court and the High Court. It does not include the UT.Section 4(6) provides that a declaration of incompatibility ‘(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made’.

The Crown is entitled to notice of any proceedings in which a court is considering whether to make a declaration of incompatibility (section 5(1)). In any such case, a Minister of the Crown, on giving the appropriate notice, is entitled to be joined as a party to the proceedings (section 5(2)).

Section 6 is headed ‘Acts of public authorities’.Section 6(1) makes it unlawful to act in a way which is incompatible with a Convention right.Section 6(1) does not apply if ‘as a result of one or more provisions of primary legislation, the authority could not have acted differently’ (section 6(2)). A ‘public authority’ includes a court or tribunal, ‘any person certain of whose functions are of a public nature’, ‘but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament’ (section 6(3)). By section 6(6), an ‘act’ includes ‘a failure to act’, but does not include a ‘failure to introduce in, or lay before, Parliament a proposal for legislation’, or to ‘make any primary legislation or remedial order’.

A person who claims that a person has acted (or proposes to act) in a way which is made unlawful by ...