R (Jwanczuk) v Secretary of State for Work and Pensions

Held, allowing the appeal, (1) that as a matter of practice, based on comity and good sense rather than on legal rules of precedent, decisions of any of the appellate courts of England and Wales, Northern Ireland or Scotland should be treated as having persuasive authority when a similar legal point arose in one of the other jurisdictions; that, although there was a long-established and strict rule of practice to the effect that, absent compelling reasons to the contrary, the courts would follow a decision from one of the other jurisdictions regarding the interpretation of a tax statute, there was no justification for extending the scope of that approach beyond the interpretation of tax statutes; that, thus, there was no general rule to the effect that greater weight should be given to a decision of an appellate court from one of the other jurisdictions where it concerned the interpretation or application of a statutory provision which applied in more than one jurisdiction, or where distinct but identical statutory provisions applied in different jurisdictions; that, rather, in areas of the law other than tax, the best approach, as a matter of pragmatic good sense, was for the appellate courts of the United Kingdom to treat each other’s decisions on the interpretation of legislation with great respect, since it was undesirable that there should be conflicting decisions on the construction of provisions which were intended to apply in the same way in more than one jurisdiction; that, however, appellate courts should not regard themselves as being under an obligation to follow decisions which they considered to be wrong, nor were they required to identify some other compelling reason, or exceptional circumstances, for departing from a wrong decision; that, in such circumstances, appellate courts should explain clearly why they considered the decision to be incorrect, give what they considered to be the correct decision and grant leave to appeal to the Supreme Court so that the difference of views could be resolved without undue delay; and that, accordingly, the Court of Appeal should have departed from the decision of the Court of Appeal in Northern Ireland if it considered that it was wrong (post, paras 60–61, 92–102).

Marshalls Clay Products Ltd v Caulfield [2004] ICR 1502, CA approved.

Abbott v Philbin [1960] Ch 27, CA; [1961] AC 352, HL(E) distinguished.

Dicta of Ward LJ in Deane v Secretary of State for Work and Pensions [2011] 1 WLR 743, para 26, CA disapproved.

(2) That being the surviving partner of a deceased person who, as a result of disability, had had a lifelong inability to do paid work to the extent necessary to generate payment of sufficient national insurance contributions to meet the contribution condition in section 31 of the Pensions Act 2014 was an “other status” for the purposes of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms; that, in particular, (i) there was no difficulty in the fact that such a status depended on the surviving partner’s association with the deceased partner, (ii) the status was more than a mere description of the difference in treatment complained of, even though it might not have any importance in any other context, (iii) the status was not too susceptible to change, (iv) although an evaluative exercise was required in order to determine if someone had the status, such an exercise could properly be described as objective since it consisted of a rational evaluation of objectively established facts, (v) the fact that there was no reliable proxy for determining whether someone had the status was not a good objection and (vi) the status was one which would be recognised by the European Court of Human Rights; and that, accordingly, since the Secretary of State accepted that, for the purposes of article 14, the claimant’s complaint fell within the ambit of article 1 of the First Protocol to the Convention, and that there had been a failure to treat the claimant differently from persons whose situations were materially different (namely any other widower whose deceased spouse made no national insurance contributions for reasons other than a lifelong inability to work), there would be a breach of article 14 unless such treatment was justified (post, paras 109–119).

Thlimmenos v Greece (2000) 31 EHRR 15, ECtHR (GC) and R (AB) v Secretary of State for Justice [2022] AC 487, SC(E) applied.

(3) That the contribution condition contained in section 31 of the 2014 Act had three aims that were legitimate and rationally connected to the imposition of that condition, namely (i) to encourage people to work in order to make the contributions needed to obtain contributory benefits, thereby reducing the stigma of claiming such benefits, (ii) to simplify the benefit system to ensure that administrative cost and complexity were reduced and (iii) to ensure greater certainty so that individuals understood what benefits they were entitled to and were able to plan for their financial future; that, in determining whether the contribution condition struck the necessary fair balance between the rights of individuals affected by it and the interests of the community as a whole, the widest margin of appreciation was appropriate, because (i) the contribution condition was a measure in primary legislation which fell squarely in the social and economic sphere and involved policy choices made by Parliament about the allocation of scarce public resources, (ii) the legislation introducing bereavement support payment was relatively recently enacted, following a consultation in which the impact of the contribution condition on disabled people was expressly considered and the decision not to make an exception for people in the claimant’s situation was maintained, and (iii) the contribution condition was concerned with defining entitlement to a benefit as to which there was no general consensus or common standard about when or whether it should be paid; and that, accordingly, even accounting for the fact that the claimant’s discrimination case included disability as part of the grounds for the impugned treatment, requiring the contribution condition to be met without any relevant exception being made was reasonably and objectively justified (post, paras 128–138, 152–153, 160).

Bank Mellat v HM Treasury (No 2) [2014] AC 700, SC(E) and R (SC) v Secretary of State for Work and Pensions [2022] AC 223, SC(E) applied.

Decision of the Court of Appeal [2023] EWCA Civ 1156; [2024] KB 275; [2024] 2 WLR 795; [2024] 3 All ER 283 reversed.