Michael O'Donnell v Department for Communities
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2020] NICA 36 |
| Date | 10 August 2020 |
| Court | Court of Appeal (Northern Ireland) |
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Neutral Citation No: [2020] NICA 36
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: STE11265
ICOS No: 19/053072
Delivered: 10/8/2020
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
MICHAEL O’DONNELL
Appellant;
and
DEPARTMENT FOR COMMUNITIES
Respondent.
___________
Before: Morgan LCJ, Stephens LJ and O’Hara J
___________
STEPHENS LJ (delivering the judgment of the court)
Introduction
[1] A Social Security Appeal Tribunal (“the tribunal”) referred to this court a
question as to whether the provisions of sections 29 and 30(1)-(3) of the Pensions Act
(Northern Ireland) 2015 (“the 2015 Act”) are incompatible with Article 14 read with
Article 8 of and/or Article 1 of the First Protocol (“A1P1”) to the Convention for the
Protection of Human Rights and Fundamental Freedoms (“ECHR”). That issue as to
incompatibility also raises a devolution issue in that a provision is outside the
competence of the Northern Ireland Assembly if it is incompatible with any
convention rights and the 2015 Act is an Act of the Northern Ireland Assembly.
These incompatibility and devolution issues arose as sections 29 and 30(1)-(3) of the
2015 Act impose a requirement of actual payment of Class 1 or Class 2 National
Insurance Contributions by a deceased spouse or civil partner as one of the
conditions of the surviving spouse or civil partner being entitled to Bereavement
Support Payment (“BSP”). Mrs Pauline O’Donnell had been unable to wor k
throughout her working life due to disabilities and therefore could not and did not
“pay” any Class 1 or Class 2 National Insurance Contributions although she was
“credited” with contributions. She could have but did not make Class 3 (voluntary)
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contributions but even if she had these would not have met the contribution
condition for BSP. She died on 31 July 2017. The Department for Communities (“the
respondent”) declined the application for BSP made by her surviving spouse,
Mr Michael O’Donnell, (“the appellant”) as “your wife did not pay enough National
Insurance Contributions.” The appellant appealed to the tribunal contending that
the contribution condition that Class 1 or Class 2 National Insurance Contributions
have been “paid” by the deceased spouse or civil partner were unjustifiable
discriminatory treatment of the appellant and of their children on account of the
disability of Pauline O’Donnell in circumstances where she could not work
throughout her working life due to her disabilities and therefore could not pay Class
1 or Class 2 National Insurance Contributions. The appellant describes this as
“unlawful indirect associative disability discrimination” contrary to Article 14 read
with Article 8 of and/or A1P1 to the ECHR.
[2] On 22 February 2019, in accordance with Schedule 10 Paragraph 8 of the
Northern Ireland Act 1998 (“the NIA”) and Order 120 Rule 6 of the Rules of the
Court of Judicature (Northern Ireland) 1980, the tribunal adjourned the appeal and
referred to this court the following question:
“Are the provisions of Sections 29 and 30(1)-(3) of the
Pensions Act (NI) 2015 incompatible with Articles 8, 14
and Protocol 1 Article 1 of the European Convention on
Human Rights, as provided by the First Schedule to the
Human Rights Act 1998?”
The question is confined to the facts of this reference which involves a deceased
individual who as a result of disabilities could not work throughout her working
life and therefore could not pay Class 1 or Class 2 National Insurance
Contributions. The reference does not extend to consideration of a situation where
the deceased individual who as a result of disabilities was less likely to have been
able to work and therefore less likely to have paid Class 1 or Class 2 National
Insurance Contributions.
[3] The incompatibility and devolution issues required this court to serve notices
on amongst others the Attorney General for Northern Ireland. This court in Lennon v
Department for Social Development [2020] NICA 15 at paragraphs [25] – [36] gave
guidance as to the formulation of devolution and incompatibility issues and the need
for appropriate notices (see also JR80’s Application [2019] NICA 58 at paragraph [4]).
A notice of incompatibility has been served in accordance with Order 121 rule 2 of
the Rules of the Court of Judicature (Northern Ireland) 1980. A devolution notice
has been served in accordance with section 79 and paragraph 5 of schedule 10 to the
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Northern Ireland Act 1998 (“the NIA”) and in accordance with Order 120. No
appearances have been entered to either of these notices. We proceed on the basis
that the recipients are content to leave the submissions to those appearing on behalf
of the respondent.
[4] Ms Doherty QC and Mr Aidan McGowan appeared on behalf of the appellant
instructed by the Law Centre (NI). Mr McGleenan QC and Mr McAteer appeared on
behalf of the respondent instructed by the Crown Solicitor’s Office. We are grateful
to counsel and solicitors for their assistance.
The reference and the evidence filed in relation to it
[5] The appellant’s appeal to the tribunal was brought under Article 13 of the
Social Security (Northern Ireland) Order 1998.
[6] The appellant’s assertion that there was incompatibility also raised a
devolution issue and under paragraph 8 to schedule 10 of the NIA a “tribunal from
which there is no appeal shall refer any devolution issue which arises in any
proceedings before it to the Court of Appeal in Northern Ireland; and any other
tribunal may make such a reference.” As Article 15(1) of the Social Security (NI)
Order 1998 provides for an appeal from the tribunal to the Commissioner the
tribunal had a discretion rather than an obligation to refer the devolution issue to
this court. We consider that the Tribunal was correct to exercise discretion to refer as
the issue was critical to the tribunal’s decision. It is a feature of the reference that
whereas some facts were agreed between the parties before the tribunal both parties
submitted evidence in this court. Ordinarily all factual issues should be resolved
before exercising discretion to refer. This is consistent with the general principle that
this court is concerned with issues of law and that ordinarily fact finding is a matter
for the tribunal at first instance. Such an approach could also help avoid referrals in
cases where it may ultimately prove to be the case that referral was not required at
all due to the way in which the factual issues are resolved. Finally, once the facts
have been found it clarifies whether the point at issue is of critical importance to
resolution of the case.
[7] In this court, the respondent introduced evidence in the form of the affidavit
dated 23 January 2020 of Una McConnell of the respondent’s Social Security Policy
and Legislation division which addressed issues such as the legal and policy
background of bereavement benefits from 1925 to the present day; an account of the
Equality Impact Assessment to which the Pensions Bill (NI) 2015 was subjected; an
overview of relevant Committee evidence and Parliamentary debates; an
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SV (A MINOR), FV (A MINOR), GV (A MINOR) and PV and A Health and Social Care Trust and The Department of Finance and A Health and Social Care Trust and PV and SV, FV & GV (Minors) acting by the Official Solicitor as Guardian Ad Litem
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