The Secretary of State for Work and Pensions v Nasim Akhtar
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Macur,Lord Justice Underhill |
| Judgment Date | 10 September 2021 |
| Neutral Citation | [2021] EWCA Civ 1353 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2019/2519 |
[2021] EWCA Civ 1353
Lord Justice Underhill
Vice-President of the Court of Appeal (Civil Division)
Lady Justice Macur
and
Lord Justice Moylan
Case No: C3/2019/2519
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE APPEALS CHAMBER
UPPER TRIBUNAL JUDGE WIKELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Z Leventhal, Mr J Anderson and Mr A Habteslasie (instructed by The Government Legal Department) for the Appellant
Ms C Rooney (instructed by Bhatt Murphy Solicitors) for the Respondent
Hearing dates: 15th and 16 th December 2020
Approved Judgment
Introduction
This appeal concerns entitlement to Bereavement Payment (“BP”) and Widowed Parent's Allowance (“WPA”) under sections 36 and 39A of the Social Security Contributions and Benefits Act 1992 (“the SSCBA 1992”). The Secretary of State for Work and Pensions (“the SSWP”) appeals from the decision of Upper Tribunal Judge Wikeley (“the UTJ”) that the claimant, Nasim Akhtar (who I will call “NA” to be consistent with the judgment below) is entitled to both benefits because of the effect of the Social Security and Family Allowances (Polygamous Marriages) Regulations 1975 (“the 1975 Regulations”).
In summary, in 2008 NA married the deceased, Mr A, at a time when he was already married. The ceremony of marriage in Pakistan created a valid polygamous marriage under the law of Pakistan but was void under English law because Mr A was domiciled in England at that date. Mr A subsequently divorced his first wife, Ms B, in England in 2009 so that his marriage to NA became monogamous and remained so until his death in 2016.
The UTJ decided that the 1975 Regulations could be read down, pursuant to section 3 of the Human Rights Act 1998 (“the HRA 1998”), so as to apply to NA because, otherwise, the legislative framework would be discriminatory in breach of her rights under the European Convention on Human Rights. The UTJ took this course because the primary focus of the argument before him was a human rights challenge advanced on behalf of NA to the previous interpretation of the 1975 Regulations, namely that they only apply to a marriage which is valid under the law of England and Wales. As a result, the UTJ's judgment focused on whether the legislation was discriminatory and whether it should be read down so as to comply with the ECHR.
The SSWP appealed contending that the UTJ had been wrong to conclude that the legislative framework was discriminatory and had been wrong to read down the 1975 Regulations so as to apply to NA.
When the appeal was first listed, the court raised questions about the meaning and effect of the 1975 Regulations, in particular as to whether the manner in which they appeared to have been applied was consistent with their proper interpretation. The parties, understandably, were not in a position to deal with this, so the appeal was adjourned to enable a more detailed analysis of the 1975 Regulations to be undertaken.
This led to us being provided with a statement from Helen Walker, Deputy Director at the Department for Work and Pensions, which contained a detailed exposition of the background to and history of the 1975 Regulations and referred to much of the background material which I deal with below. I am extremely grateful for the depth of the research reflected in the detail provided in and the documents provided with this statement. I am also very grateful to counsel for their further detailed submissions, including the additional written submissions (and documents) provided following the conclusion of the hearing by Ms Leventhal on 1 February 2021. I would also note that, prior to the hearing in this court, Ms Rooney was commendably acting pro bono.
Also by way of introduction, the Supreme Court decided in In re McLaughlin [2018] 1 WLR 4250 (“ McLaughlin”) that the equivalent legislation in Northern Ireland in respect of WPA (section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992) was incompatible with article 14, read with article 8, of the ECHR “in so far as it precludes any entitlement to widowed parent's allowance by a surviving unmarried partner of the deceased”, Lady Hale at [45]. A declaration was made to that effect.
As explained in the Headnote, the Supreme Court decided that there was no proportionate justification for denying “a mother and her children the benefit of the father's national insurance contributions purely on the basis that the parents had not been married to one another”. It was, therefore, accepted in the present case that the rejection of NA's claim to WPA was a breach of her human rights and the only issue was the appropriate remedy.
The Supreme Court's decision was applied by Holman J in Jackson v Secretary of State for Work and Pensions [2020] 1 WLR 1441. He decided, applying McLaughlin, that the legislation applicable to bereavement support payment (which has replaced BP and WPA, as referred to below) was also discriminatory and made a declaration of incompatibility.
The UTJ expressed concern, at [116], at “the apparently glacial pace of the Secretary of State's consideration” of the decision in McLaughlin. He also referred to the House of Commons Work and Pensions Select Committee in April 2019 describing the “profound injustice” of the bereavement benefits system. In the light of the history and, in particular, the passage of time since the decision in McLaughlin, we asked Ms Leventhal what steps the Government had taken to address the issue. Ms Leventhal drew our attention to a response, dated 28 July 2020, to a written question in which the Parliamentary Under-Secretary for Work and Pensions said:
“It is our intention to take forward a Remedial Order to remove the incompatibilities from the legislation governing Widowed Parent's Allowance and Bereavement Support Payment by extending these benefits to cohabitees with children. We intend to lay the Order before the House in due course.”
Since then, in a written response by the Parliamentary Under Secretary of State for Work and Pensions in the House of Lords, Baroness Stedman-Scott, dated 18 April 2021, it was said that the Government hopes “to lay a proposal for a draft Order before Parliament before Summer Recess”. Very recently, on 15 July 2021, a draft order, the Bereavement Benefits (Remedial) Order 2021, has been laid before Parliament.
The issues which arise in this appeal can be summarised as follows:
(i) Do the 1975 Regulations, with sections 36 and 39A of the SSCBA 1992, only apply if the relevant marriage is valid under English law and specifically, not void under section 11 of the Matrimonial Causes Act 1973 (“the MCA 1973”) and, accordingly, do they not apply to NA.
If they do not apply to NA:
(ii) Does the legislation breach NA's rights under the ECHR, specifically her rights within A1P1 (article 1 of Protocol 1) together with article 14;
(iii) If they do breach her rights, can they be read down so as to apply to NA.
I am largely using the same initials to describe the parties and other relevant individuals as those used in the first instance judgment to maintain consistency: NA v Secretary of State for Work and Pensions [2019] 1 WLR 6321.
Factual Background
Mr A was born in Pakistan in 1958. He married his first wife, Ms B, in Pakistan in 1976. This was a valid marriage in Pakistan and, in broad terms, was recognised as such by the law of England and Wales even though it was potentially polygamous because, at the date of the marriage, Mr A was domiciled in Pakistan. Subsequently both Mr A and his first wife moved to live in the UK. He became a British citizen in 1993.
In 2001 Mr A pronounced a talaq in the UK, with the intention of divorcing Ms B, and they separated. The talaq was not effective under English law to determine their marriage: section 44 of the Family Law Act 1986.
In 2008 Mr A married NA in Pakistan. The ceremony effected a valid polygamous marriage in Pakistan but it was void under section 11 of the MCA 1973 because Mr A was domiciled in England and Wales at that date and could not validly contract a marriage which was actually polygamous and, in English law terms, bigamous.
In 2009 Mr A and Ms B were validly divorced in England. Ms B died in 2011.
In 2010, NA moved to the UK, being granted entry clearance as Mr A's spouse. She and Mr A had a daughter who was born in 2012.
Mr A died in 2016.
Social Security Legislation
The judgment below sets out the history of the relevant legislation under the heading, “The shifting framework of provision for bereavement benefits”, at [11]–[15].
The legislation applicable to NA's claims is that in force at the date of Mr A's death. BP and WPA have since been replaced by bereavement support payment under the Pensions Act 2014, but these changes are not relevant to this case.
The SSCBA 1992 provided as follows:
“Benefits for widows and widowers
36. Bereavement payment
(1) A person whose spouse or civil partner dies on or after the appointed day shall be entitled to a bereavement payment if —
(a) either that person was under pensionable age at the time when the spouse or civil partner died or the spouse or civil partner was then not entitled to a Category A retirement pension under section 44 below or a state pension under Part 1 of the Pensions Act 2014; and
(b) the spouse or civil partner satisfied the contribution condition for a bereavement...
To continue reading
Request your trial
-
HM v Secretary of State for Work and Pensions (BB); MK v Secretary of State for Work and Pensions (BB)
...that the Upper Tribunal is required to decide this against the appellants because of the Court of Appeal’s decision in SSWP v Akhtar [2021] EWCA Civ 1353. Ms Akhtar had been a party to a marriage that was polygamous and, in English law, bigamous, in that at the time of their marriage (which......
-
Nazia Parveen v Assim Balal Hussain
...relevant rules of private international law. These were summarised in my judgment in Akhtar v Secretary of State for Work and Pensions [2022] 1 WLR 421: “Validity of Marriage [60] Under English rules of private international law: (a) the general rule is that the formal validity (i.e. the f......
-
Secretary of State for Work and Pensions v AB (BB)
...to run the argument in para 8 and if she did, required her to address the recent decision of the Court of Appeal in SSWP v Akhtar [2021] EWCA Civ 1353. 10. On 7 March 2022 a submission form was received from her representative. The form contained no grounds for resisting the appeal at all b......