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

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Moses
Judgment Date14 February 2002
Neutral Citation[2002] EWHC 191 (Admin)
Date14 February 2002
Docket NumberCase No: CO/0865/2001 Case No: CO/3505/2001 Case No: CO/3507/2001

[2002] EWHC 191 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before

The Honourable Mr Justice Moses

Case No: CO/0865/2001

Case No: CO/4743/2000

Case No: CO/3505/2001

Case No: CO/3507/2001

Thomas John Hooper
Claimants
Leslie William Withey
Frank Naylor
Andrew Walker Martin
and
Secretary of State for Work and Pensions
Defendant

Mr. James Goudie QC and Mr. Jason Coppel (instructed by Loosemores for Mr. Hooper)

Mr. Geoffrey Cox and Mr. Edward Risso-Gill (instructed by Royds Treadwell for Messrs. Withey, Naylor and Martin)

Mr. Philip Sales and Miss Jemima Stratford (instructed by the Solicitor to the Department of Work and Pensions for the Secretary of State)

Mr Justice Moses

INTRODUCTION

1

These four claimants are widowers. Their wives, sadly, died before the Welfare Reform and Pensions Act 1999 ("the 1999 Act") came into force on 9. 4.2001. Had they been women they would have become entitled to one or more forms of benefit payable to widows pursuant to the Social Security Contributions and Benefits Act 1992. In issue are three types of widow's benefit: Widow's Payment, Widowed Mother's Allowance and Widow's Pension. These are test cases, since there are a large number of potential claimants whose entitlement will depend upon the outcome of this case.

2

At the heart of the case lies an issue of discrimination on the ground of gender and the effect of the Human Rights Act 1998 upon the powers of the court to rectify such discrimination. The Government has reached a friendly settlement of claims brought by widowers who made claims to benefits other than Widow's Pension in Strasbourg. The claimants assert that their claims should also have been settled.

3

Widow's Payment and Widowed Mother's Allowance are at issue in the claims of Messrs. Hooper, Withey and Martin. Widow's Payment and Widow's Pension are at issue in the case of Mr. Naylor. Mr. Hooper's first wife died on 17.12.1986 leaving two dependent children. His second wife died on 27 March 1997, leaving three dependent children. Mr. Withey's wife died on 26 November 1996, leaving two dependent children. Mr. Martin's wife died on 11 September 2000, leaving two dependent children and Mr. Naylor's wife died on 2 July 1995.

STATUTORY PROVISIONS

4

Sections 36–38 of the Social Security Contributions and Benefits Act 1992 ("the 1992 Act") provided for the payment of Widow's Payment, Widowed Mother's Allowance and Widow's Pension in respect of the death of a husband before 9 April 2001. The relevant provisions are set out in the Annexe to this judgment. The provisions of the Social Security Act 1986 are relevant to Mr. Hooper's claim in respect of the death of his first wife but since, for reasons given later, he has no valid claim I shall not set out those provisions.

5

Section 36 of the 1992 Act provided for a Widow's Payment, a lump sum payment of £1000 subject to conditions which included restriction to those under pensionable age and payment by the late husband of National Insurance contributions.

6

Section 37 provided for a Widowed Mother's Allowance, weekly payments, for women with dependent children (entitled to child benefit) subject to similar conditions.

7

Section 38 provided for Widow's Pension, weekly payments, to those over 45 but under the age of 65 subject to similar conditions.

8

These provisions were replaced by the 1999 Act, the relevant provisions of which are set out in the Annexe. These provisions introduced a system of survivor's benefits, Bereavement Payment, Widowed Parent's Allowance and Bereavement Allowance payable to both men and women, but at the cost of a more limited form of benefit. But it preserved the distinction between widows and widowers for those already in receipt of widows' benefits. It was not made retrospective.

9

Section 54 (inserting a new Section 36 into the 1999 Act) replaced Widow's Payment with Bereavement Payment set at £2000 for those whose spouses died on or after 9 April 2001. A deceased spouse must have satisfied the contribution condition.

10

Section 55 (inserting a new Section 39A) provides for Widowed Parent's Allowance for spouses with dependent children. The contribution condition must have been satisfied.

11

Section 55 also (by the insertion of a new Section 39B) replaces Widow's Pension by a Bereavement Allowance payable only for 52 weeks to those over 45 but under pensionable age.

12

Existing rights are preserved by Section 55 (inserting Section 36A). Widows whose husbands died before 9 April 2001 will continue to receive Widowed Mother's Allowance and Widow's Pension. But by Section 36A(2) the new Widowed Parent's Allowance is given to men whose wives died before 9 April 2001.

ISSUES

13

The following issues have arisen:—

(1) Does the difference in treatment between widows and widowers in relation to Widow's Payment and Widow's Pension constitute discrimination under Article 14 read with Article 8 or Article 1 of the First Protocol of the European Convention on Human Rights? The defendant accepts that there was discrimination under Article 14 read with Article 8 in relation to Widowed Mother's Allowance.

(2) Were the claimants "victims" within the meaning of section 7 of the HRA 1998?

(3) Is the difference in treatment between widows and widowers in relation to Widow's Pension objectively justified? (Mr. Naylor's claim).

(4) Is the Government to be afforded a reasonable period for reform (the so-called Walden point)?

(5) Was there discrimination within the meaning of Article 14 between widowers who brought claims, which were settled in Strasbourg and the widower claimants in the instant case?

(6) Was a refusal to settle these claims irrational or unfair?

(7) Can the provisions of the 1992 Act be interpreted pursuant to Section 3 of the HRA 1998 to entitle both widows and widowers to benefits?

(8) To what extent does the HRA1998 have retrospective effect?

(9) Did the defendant act unlawfully in refusing to make extra-statutory payments, contrary to Section 6(1) of the HRA 1998?

FIRST ISSUE: IS THERE DISCRIMINATION CONTRARY TO ARTICLE 14 READ WITH ARTICLE 8 IN RELATION TO WIDOW'S PAYMENT AND WIDOW'S PENSION?

14

Article 14 prohibits discrimination only in relation to the enjoyment of rights and freedoms enshrined in the Convention. Claimants can only rely upon a breach of Article 14 if they can bring themselves within the ambit of a substantive provision of the Convention. 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".

15

The claimants contend that Widow's Payments and Widow's Pension fall within the ambit of Article 8(1). Article 8 provides:

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

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety and the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

16

It is important to recall that the claimants need not show that the failure to pay Widow's Payments and Widow's Pension to widowers discloses a violation of Article 8(1). The test is whether claims to such payments fall within the ambit of Article 8(1) (see e.g. Abdulaziz Cabales and Balkandali v U.K. [1985] 7 EHRR 471 paragraph 71 page 499).

17

The test as to whether the claims fall within the ambit of a substantive provision has a significant corollary. Article 14 provides protection against discrimination, not only in respect of those rights which a state is obliged by the Convention to guarantee, but also in respect of benefits which it chooses to provide which fall within the scope of a substantive article. This principle is demonstrated by Abdulaziz itself. Alien husbands with a right to remain in the United Kingdom were permitted to be joined by their wives, but the same permission was not granted to women with a right to remain. There is no obligation upon the United Kingdom under the Convention to allow wives of husbands who had a right to remain to join their husbands, but once that privilege was granted to husbands, the Court concluded that the differential treatment in relation to wives fell within the ambit of Article 8(1) and was discriminatory. The Court said:

"There remains a more general argument advanced by the Government, in that the United Kingdom was not in violation of Article 14 by reason of the fact that it acted more generously in some respects….than the Convention required. The Court cannot accept this argument. It would point out that Article 14 is concerned with the avoidance of discrimination in the enjoyment of the Convention rights insofar as requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 includes, in general, cases where a personal group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention." (see paragraph 82).

18

There was a dispute between the parties as to the test appropriate for determining whether the claimed enjoyment of a right fell within the ambit of Article 8. The...

To continue reading

Request your trial
38 cases
  • R (Morris) v Westminster City Council (No 3)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 7 October 2004
    ......; Ms Lisa Giovannetti for the First Secretary of State, as an interested party. MR ......
  • David Anthony Cooper v Secretary of State for Work and Pensions
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 17 July 2006
    ...in a gender neutral way so as to extend entitlement to me: see the decision of the Court of Appeal in R (Hooper and Others) v. The Secretary of State for Work and Pensions (2003) 1 WLR 2623 at [26–28] (to be found at pages 72 and 73 of the case papers) . That conclusion of the Court of Appe......
  • Freeman v Mayor and Burgesses of the London Borough of Islington
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 June 2009
    ......Murch . Such a state of affairs is bound to render it far more ......
  • R (RJM) v Secretary of State for Work and Pensions
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 June 2007
    ...that the principles stated by Lord Steyn do not apply in this case. They were followed in the House of Lords in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2005] 1 WLR 1681, at [65] per Lord Hoffmann (“ Hooper”), in R (Carson and Reynolds) v Secretary of State for......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT