R (on the applications of Hooper, Withey, Naylor and Martin) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
JudgeLord Phillips,LORD PHILLIPS
Judgment Date18 June 2003
Neutral Citation[2003] EWCA Civ 875,[2003] EWCA Civ 813
Docket NumberC/2002/0676/0677,Case No: C/2002/0676/0677
CourtCourt of Appeal (Civil Division)
Date18 June 2003

[2003] EWCA Civ 813





The Hon Mr Justice Moses

Royal Courts of Justice


London, WC2A 2LL


Lord Phillips of Worth Matravers, Mr

Lord Justice Mantell and

Lord Justice Rix

Case No: C/2002/0676/0677

The Queen on the Application of Hooper, Withey, Naylor and Martin
Secretary of State for Work and Pensions (formerly the Secretary of State for Social Security)

Mr James Goudie, QC and Mr Jason Coppel (instructed by Loosemores for the 1 st Appellant)

Mr Geoffrey Cox, QC and Mr Edward Risso-Gill (instructed by Royds Treadwell for the 2 nd, 3 rd & 4 th Appellants)

Mr Neil Garnham, QC, Mr Philip Sales and Miss Jemima Stratford (instructed by The Solicitor to the Department for Work and Pensions)

Lord Phillips MR

This is the judgment of the Court. The hearing of the appeal began on 11 October 2002, but the Court found it necessary to invite the parties to return for further argument, so that the hearing was not concluded until 14 March 2003. Before Moses J Mr Philip Sales appeared for the Secretary of State for Work and Pensions. At the October hearing Mr Neil Garnham, QC, replaced him, but Mr Sales appeared for the Secretary of State at the March hearing.



There are before the Court two conjoined appeals involving five individual appellants. Each is a widower. The wife of each died at a time when a statutory regime prevailed under which widows received benefits or tax allowances in circumstances in which widowers did not. This regime reflected a bygone era in which the husband was the breadwinner of the family and the wife did not usually go out to work. That regime has changed, and the State now recognises that to provide such benefits to widows alone would constitute discrimination based on gender which would infringe Article 14, together with Article 8, or, in the case of tax allowances, Article 1 of the First Protocol, of the European Convention on Human Rights ("the Convention"). On 2 October 2000, the Convention was incorporated into English law by, and subject to the provisions of, the Human Rights Act 1998 ("the HRA").


The appellants claim that they should have received the same benefits that were available to widows under the old regime. They contend that they are the victims of discrimination which violates the Convention. In advancing their claims they rely upon the provisions of the HRA. They do not, however, all do so in the same manner. Some of the issues that their claims raise are novel and far-reaching. These cases have been treated as test cases and many other cases will turn on the result of these appeals.

The appellants and the legislation under which they claim


Four of the appellants, Messrs Hooper, Withey, Martin and Naylor, complain of discrimination in the matter of widow's benefits paid pursuant to sections 36–38 of the Social Security Contributions and Benefits Act 1992 (the "1992 Act"), and the fifth, Mr Wilkinson, complains of discrimination in the matter of the widow's bereavement allowance granted under section 262(1) of the Income and Corporation Taxes Act 1988 (" ICTA 1988"). The respondent in the case of the 1992 Act is the Secretary of State for Work and Pensions, and the respondents in the case of ICTA 1988 are the Inland Revenue Commissioners.


Although similar issues arise in both appeals, we propose to deal with the appeals one at a time.


The Legislation


We propose at this point to summarise the relevant statutory provisions that relate to benefits, which we set out in full as an Annex.


Section 36 of the 1992 Act provided for a Widow's Payment, a lump sum payment of £1,000, subject to conditions which included restriction to widows under pensionable age whose late husbands had made national insurance contributions. Section 37 provided for a Widowed Mother's Allowance ("WMA") payable weekly, subject to similar conditions, to widows with dependent children. Section 38 provided for a Widow's Pension, payable weekly, subject to similar conditions, to widows not entitled to WMA over 45 and under 65 at the date of their husband's death or at the date when they ceased to be entitled to WMA. Under applicable regulations (The Social Security (Claims and Payments) Regulations 1987, SI 1987 No 1968) such benefits had to be applied for "in writing on a form approved by the Secretary of State…or in such other manner, being in writing, as the Secretary of State…may accept as sufficient in the circumstances of any particular case" (regulation 4(1)); and within three months "beginning with any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned" (regulation 19(2)). There were special forms for making claim to widow's benefits, which not surprisingly were drafted in terms which would not be appropriate for a claim by a widower. The effect of the three month time limitation was (i) that if the Widow's Payment was not claimed in time, it was wholly lost, and (ii) that arrears of WMA and the Widow's Pension could not be recovered for more than three months prior to the date on which a valid claim for these was made.

The new regime


On 9 April 2001 the Welfare Reform and Pensions Act 1999 (the "1999 Act") came fully into force, amending the 1992 Act. Its provisions introduced a system of survivor's benefits payable to both men and women, but at the price that these were more limited forms of benefit, targeted most on those in need. For those already in receipt of widow's benefits under the 1992 Act, however, the 1999 Act preserved the distinction between widows and widowers, for existing rights were preserved. Section 54 substituted a new section 36 into the 1992 Act and replaced Widow's Payment with a new Bereavement Payment, set at £2000 (thus recognising an increase in expenses arising directly from bereavement) and payable to widows and widowers alike, whose spouses had died after 9 April 2001. Section 55 introduced a number of new sections into the 1992 Act: a new section 39A replaced WMA with a new Widowed Parent's Allowance ("WPA") for widows or widowers with dependent children; and a new section 39B replaced Widow's Pension with a Bereavement Allowance payable for only 52 weeks to those over 45 but under pensionable age. Existing rights to WMA and Widow's Pension were preserved by a new section 36A, and by section 36A(2) the new WPA was extended after 9 April 2001 to widowers whose wives had died before 9 April 2001 and who had dependent children as at 9 April 2001.

The Convention


Article 8 of the Convention provides that –

"Everyone has the right to respect for his private and family life, his home and his correspondence."


Article 14 provides:

"The enjoyment of the rights and freedoms set forth in this Convention 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."


Article 41 provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

The Human Rights Act 1998


Section 3 provides:

"3 (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section –

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility."


Section 6, subsections (1) and (2) provide:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if –

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions"


Section 7 provides:

"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.


(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."


Section 8 provides:

"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power...

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