The Bereavement Benefits (Remedial) Order 2023
| Jurisdiction | UK Non-devolved |
2023 No. 134
Social Security
The Bereavement Benefits (Remedial) Order 2023
Made 8th February 2023
Coming into force 9th February 2023
Provisions about two bereavement benefits in the Social Security Contributions and Benefits (Northern Ireland) Act 19921and the Pensions Act 20142have been declared3under section 4 of the Human Rights Act 19984to be incompatible with a Convention right5.
The time for bringing an appeal in the case concerning provisions in the Pensions Act 2014 has expired and no appeal has been brought within that time6.
The Secretary of State considers that there are compelling reasons for proceeding by way of remedial order7to make such amendments to the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and the Pensions Act 2014 as she considers necessary to remove the incompatibility.
In accordance with paragraph 2(a) of Schedule 2 to the Human Rights Act 1998, a draft of this instrument was laid before Parliament and was approved by a resolution of each House of Parliament, a document containing a draft of this instrument having previously been laid before Parliament in accordance with paragraph 3(1) of that Schedule.
The Secretary of State for Work and Pensions makes the following Order in exercise of the powers conferred by section 10(2) of, and paragraph 1(1), (2) and (3) of Schedule 2 to, the Human Rights Act 1998.
Citation, commencement, effect and interpretation
1.—(1) This Order may be cited as the Bereavement Benefits (Remedial) Order 2023.
(2) This Order comes into force on the day after the day on which it is made.
(3) The amendments made by articles 4 to 9 are to be treated as having had effect from 30th August 2018.
(4) In this Order—
“bereavement support payment” means a bereavement support payment under section 30 of the Pensions Act 2014 or section 29 of the Pensions Act (Northern Ireland) 20158(bereavement support payment);
“widowed parent’s allowance” means a widowed parent’s allowance under section 39A of the Social Security Contributions and Benefits Act 19929or section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 199210(widowed parent’s allowance).
Transitional provisions
2.—(1) Nothing in this Order removes a person’s entitlement to bereavement support payment or a widowed parent’s allowance for any period before this Order comes into force.
(2) A person who is entitled to bereavement support payment or a widowed parent’s allowance immediately before this Order comes into force continues to be entitled to that benefit if and for so long as the person would have been entitled to that benefit but for the making of this Order; and a person who is so entitled, apart from satisfying the condition of making a claim, may make a claim accordingly.
(3) A person’s entitlement by virtue of paragraph (2) is not affected by the fact that another person is entitled to bereavement support payment or a widowed parent’s allowance in respect of the same death by virtue of this Order.
3.—(1) Paragraphs (2) and (3) apply where, apart from satisfying the condition of making a claim, the claimant is entitled to a widowed parent’s allowance as a result of this Order for any part of the period beginning on 30th August 2018 and ending on the day this Order comes into force.
(2) In regulation 19(2) of the Social Security (Claims and Payments) Regulations 1987 (time for claiming benefit)11“three months” is to be read in relation to that entitlement as “12 months”.
(3) In regulation 19(2) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (time for claiming benefit)12“3 months” is to be read in relation to that entitlement as “12 months”.
(4) Paragraphs (5) and (6) apply where, apart from satisfying the condition of making a claim, the claimant is entitled to bereavement support payment as a result of this Order in relation to a death which occurred before the day this Order comes into force.
(5) Regulation 19 of the Social Security (Claims and Payments) Regulations 1987 (time for claiming benefit) is to be read in relation to that entitlement as follows—
(a)
(a) in paragraph (2), the words from “three months” to the end of the paragraph are to be read as “21 months beginning with the day after the day the Bereavement Benefits (Remedial) Order 2023 comes into force”; and
(b)
(b) in paragraph (3BA)13—
(i) sub-paragraph (b) is to be read as though the following was substituted for it—
“
(b)
(b) the date on which the claimant’s cohabiting partner (within the meaning in section 30(6B) of the Pensions Act 2014) died,
”; and
(ii) “that date of death” is to be read as “the day the Bereavement Benefits (Remedial) Order 2023 comes into force”.
(6) Regulation 19 of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (time for claiming benefit) is to be read in relation to that entitlement as follows—
(a)
(a) in paragraph (2), the words from “3 months” to the end of the paragraph are to be read as “21 months beginning with the day after the day the Bereavement Benefits (Remedial) Order 2023 comes into force”; and
(b)
(b) in paragraph (3BA)14—
(i) sub-paragraph (b) is to be read as though the following was substituted for it—
“
(b)
(b) the date on which the claimant’s cohabiting partner (within the meaning in section 29(6B) of the Pensions Act (Northern Ireland) 2015) died,
”; and
(ii) “that date of death” is to be read as “the day the Bereavement Benefits (Remedial) Order 2023 comes into force”.
(7) Where paragraph (2) or (5) applies to a person’s claim for benefit, section 1(2) of the Social Security Administration Act 1992 (entitlement to benefit dependent on claim)15does not apply to their entitlement.
(8) Where paragraph (3) or (6) applies to a person’s claim for benefit, section 1(2) of the Social Security Administration (Northern Ireland) Act 1992 (entitlement to benefit dependent on claim)16does not apply to their entitlement.
Amendment of the Pensions Act 2014
4.—(1) Section 30 of the Pensions Act 2014 (bereavement support payment) is amended in accordance with the following provisions.
(2) In subsection (1)—
(a)
(a) in paragraph (a), for “spouse or civil partner” substitute “spouse, civil partner or cohabiting partner”;
(b)
(b) after paragraph (a), insert—
“
(aa)
(aa) in the case of a person whose cohabiting partner dies, the person is pregnant or entitled to child benefit in circumstances specified under subsection (4) or, where no such circumstances are specified, in such circumstances as the Secretary of State may specify by regulations,
”; and
(c)
(c) in paragraphs (b) and (c), for “spouse or civil partner” substitute “spouse, civil partner or cohabiting partner”.
(3) After subsection (1), insert—
“
1A Only one person is entitled to bereavement support payment in respect of one death.
1B Where, apart from subsection (1A), more than one person would be so entitled, entitlement is to be determined in accordance with subsections (1C) and (1D).
1C Where only one of those persons is a member of the same household as the deceased, that person is entitled.
1D Where there is more than one person who is a member of the same household as the deceased and would (apart from subsection (1A)) be entitled—
(a) if one of those persons is the deceased’s spouse or civil partner and is pregnant or entitled to child benefit in circumstances specified under subsection (1)(aa) or (4), that person is entitled;
(b) if there is no spouse or civil partner entitled under paragraph (a), the deceased’s cohabiting partner who is pregnant or entitled to child benefit in circumstances specified under subsection (1)(aa) or (4) is entitled (but this is subject to paragraphs (c) and (d));
(c) if there is more than one cohabiting partner within paragraph (b), the cohabiting partner who has been a member of the same household as the deceased for longest is entitled;
(d) if there is more than one cohabiting partner within paragraph (b) and each partner has been a member of the same household as the deceased for the same length of time, the Secretary of State must determine who is entitled.
(4) After subsection (6), insert—
“
6A For the purposes of this section, the Secretary of State may by regulations specify—
(a) circumstances in which the fact that two persons are married to each other, or are civil partners or cohabiting partners of each other, is to be disregarded;
(b) circumstances in which two persons are to be treated as if they were married to each other or were civil partners or cohabiting partners of each other;
(c) circumstances in which people are to be treated as being, or as not being, members of the same household.
6B For the purposes of this section, two persons are cohabiting partners if they are not married to, or civil partners of, each other but are living together as if they were married or civil partners.
6C The Secretary of State must issue a statement of the Secretary of State’s policy with respect to making determinations under subsection (1D)(d).
Amendment of the Social Security Contributions and Benefits Act 1992
5.—(1) The Social Security Contributions and Benefits Act 1992 is amended in accordance with the following provisions.
(2) In section 39A (widowed parent’s allowance)—
(a)
(a) for “spouse or civil partner” substitute “spouse, civil partner or cohabiting partner” in each place it appears;
(b)
(b) in subsection (1)(b), after “formed a civil partnership” insert “or a cohabiting partnership”;
(c)
(c) in subsection (2)(b)—
(i) after “surviving spouse” insert “or cohabiting partner”;
(ii) in sub-paragraph (i), after “late husband”...
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