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Beveridge proposed the replacement of unconditional inadequate widows pensions by a short-term widows benefit, payable for 13 weeks, to allow time for readjustment and a longer term guardian benefit for those with dependent children. FAC |
Childless widows should be expected to work (para 153). FAC |
However, the Report acknowledged the difficulties of women who were widowed, or whose children grew up, when they had reached an age at which it would be difficult to find work (para 156). FAC |
This concern was reflected in the eventual legislation, the National Insurance Act 1946, which introduced three benefits: a widows allowance, a widowed mothers allowance and a widows pension where the claimant was widowed over 50 or over 40 when widowed mothers allowance ceased. FAC |
In 1954, the United Kingdom ratified the ILO Social Security (Minimum Standards) Convention 1952 (No 102), which provided that The contingency covered shall include the loss of support suffered by the widow or child as the result of the death of the breadwinner (article 60). FAC |
This structure remained broadly unchanged until the Social Security Act 1986, which replaced the short-term widows allowance with a one-off lump sum widows payment. FAC |
It also increased the age threshold for full widows pension to 55 (a reduced rate pension was payable to those widowed, or whose widowed mothers allowance had ended, between 45 and 54). FAC |
But the numbers of recipients had fallen, from an average of almost 600,000 in the 1960s to an average of around 500,000 in the 1970s. FAC |
Social trends, including falling marriage rates, rising divorce rates and increased male life expectancy, reduced the numbers of widows under pensionable age, from over 600,000 in 1951 to under 300,000 in 1995 (ONS/OPCS Marriage and Divorce Statistics, FM2, nos 16, 23). FAC |
By then, of course, there had been many other profound social changes. FAC |
Women were no longer required or expected to give up work on marriage. FAC |
Married womens participation in the labour force had grown dramatically, although their working patterns were not identical to those of men, with many more leaving the workforce or working part time, especially while children were young. FAC |
Thus it is not surprising that by the next wave of reform, most widows eligible for the benefits were in work, although those with young children were far less likely than married or cohabiting women to be working at all and less likely than other types of lone mother to be working full-time (ONS, Living in Britain: Re... |
The availability of a non-means-tested benefit may have played a part in this; but so may the greatly increased prevalence of survivors benefits in occupational pension schemes in both the public and private sectors. FAC |
The next wave of reform came about as part of a general package of welfare and pension reforms introduced by the 1997 Labour Government. FAC |
But a major spur to their changes to bereavement benefits was that it had become inevitable that widows benefits would be successfully challenged for discriminating against men. FAC |
Mr Willis had already begun his case in the European Court of Human Rights; although judgment was not given until 2002, it was a reasonable prediction that he would succeed in challenging his non-entitlement to both widows payment and widowed mothers allowance as incompatible with article 14 taken with A1P1: see Willis... |
One solution might have been to abolish widows benefits altogether, save perhaps for the one-off payment, as being based on anachronistic assumptions about the major vicissitudes in life, but to do so was seen as removing help for many people in real need. FAC |
Instead, there was a major re-focus, based on the defects identified in the governments green paper, A new contract for welfare: Support in Bereavement (Cm 4104, November 1998): the then scheme did not give enough help at the point of bereavement; gave most help to people who did not need widows benefits because they w... |
The essential features of the new scheme were: first, it would apply equally to widows and widowers; second, the one-off bereavement payment would be increased from 1,000 to 2,000; third, there would be a widowed parents allowance equivalent to the current widowed mothers allowance; and fourth, there would no longer be... |
A disregard of 10 of the widowed parents allowance would be introduced into means-tested benefits. FAC |
That was the scheme inserted into the Social Security Contributions and Benefits Act 1992 for Great Britain by the Welfare Reform and Pensions Act 1999. FAC |
It was also the scheme inserted by statutory instrument (1999/3147 (NI 11)) into the Social Security Contributions and Benefits (Northern Ireland) Act 1992, with which this case is concerned. FAC |
It was amended to take account of civil partnerships by the Civil Partnerships Act 2004. FAC |
Since then, the scheme has been radically changed yet again, by the Pensions Act 2014 and the Pensions Act (Northern Ireland) 2015, in respect of deaths taking place after their implementation in March 2017. FAC |
Bereavement payment and widowed parents allowance have been abolished and replaced with a single bereavement support payment available to all bereaved spouses and civil partners irrespective of age. FAC |
This is paid as an initial lump sum followed by monthly instalments for up to 18 months. FAC |
The rates are higher if the bereaved person is pregnant or entitled to child benefit. FAC |
The object is to focus support on the period immediately after bereavement, it being very common for bereavement to have a large short-term impact on the finances of the surviving partner (Government Response to the public consultation: Bereavement Benefit for the 21st Century, Cm 8371, July 2012, p 16). FAC |
As before, entitlement depends on the (simplified) contribution record of the deceased and is not means-tested. FAC |
Longer term impacts are left to means-tested benefits with some transitional cushioning. FAC |
In essence, therefore, what began as a long-term replacement of a wifes and childrens loss of a breadwinning husbands income, moved to a long-term replacement of a breadwinners income while children were growing up, and is now a transitional compensation for the immediate financial loss suffered by the survivor and chi... |
The contribution conditions are now less onerous. FAC |
In none of these waves of reform was consideration given to extending the scheme to unmarried partners. FAC |
The Beveridge Report did briefly discuss Unmarried person living as a Wife, pointing out that treatment of the problem was complicated by the possibility that either or both parties might have a legal spouse. FAC |
It recommended that Widows and guardian benefits should not be paid except to a woman who was the legal wife of the dead man. FAC |
Retirement pension should not be paid in respect of contributions other than the womans own contributions, except to the legal wife of the retired man (para 348(ii)). FAC |
That principle has not been officially questioned since. FAC |
The most recent government publication, on Bereavement Benefit for the 21st Century (above), simply reports that some consultation respondents took the opportunity to raise wider issues outside the scope of the consultation, including the extension of bereavement benefit entitlement to cohabitees (p 15). FAC |
The legislation in question STA |
We need only consider section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, in the version in force when Mr Adams died: Widowed parents allowance. STA |
(1) This section applies where - a person whose spouse or civil partner dies on or (a) after the appointed day is under pensionable age at the time of the spouses or civil partners death, or (b) - a man whose wife died before the appointed day (i) (ii) has not remarried before that day, and is under pensionable age on ... |
(2) The surviving spouse or civil partner shall be entitled to a widowed parents allowance at the rate determined in accordance with section 39C below if the deceased spouse or civil partner satisfied the contribution conditions for a widowed parents allowance specified in Schedule 3, Part I, paragraph 5 and - (a) the ... |
(3) A child or qualifying young person falls within this subsection if the child or qualifying young person is either - (a) a son or daughter of the surviving spouse or civil partner and the deceased spouse or civil partner; or (b) a child or qualifying young person in respect of whom the deceased spouse or civil partn... |
(4) The surviving spouse shall not be entitled to the allowance for any period after she or he remarries or forms a civil partnership, but, subject to that, the surviving spouse shall continue to be entitled to it for any period throughout which she or he - satisfies the requirements of subsection (2)(a) or (a) (b) abo... |
(4A) The surviving civil partner shall not be entitled to the allowance for any period after she or he forms a subsequent civil partnership or marries, but, subject to that, the surviving civil partner shall continue to be entitled to it for any period throughout which she or he - satisfies the requirements of subsecti... |
(5) A widowed parents allowance shall not be payable - (a) for any period falling before the day on which the surviving spouses or civil partners entitlement is to be regarded as commencing by virtue of section 5(1)(1) of the Administration Act; or (b) for any period during which the surviving spouse or civil partner a... |
Thus the key features are: the claimant must be under pensionable age at the date of death and the allowance ceases once he or she reaches that age; the deceased spouse or civil partner must have satisfied the prescribed contribution conditions (the details need not concern us); the surviving spouse or civil partner mu... |
The ECHR STA |
Article 14 of the ECHR provides that: 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... |
As is now well-known, this raises four questions, although these are not rigidly compartmentalised: (1) Do the circumstances fall within the ambit of one or more of the Convention rights? (2) Has there been a difference of treatment between two persons who are in an analogous situation? (3) characteristics listed or ot... |
Article 14 does not presuppose that there has been a breach of one of the substantive Convention rights, for otherwise it would add nothing to their protection, but it is necessary that the facts fall within the ambit of one or more of those: see eg Inze v Austria (1987) 10 EHRR 394, para 36. Ratio |
In this case, it is clear that the denial of a contributory social security benefit falls within the ambit of the protection of property in A1P1: see Willis v United Kingdom (2002) 35 EHRR 21, in relation to the denial of widows payment and widowed mothers allowance to widowers. Ratio |
The Court did not there find it necessary to consider whether the facts also fell within the ambit of the right to respect for family life protected by article 8 of the Convention. Ratio |
But this could matter, in relation both to whether the claimant and her children are in an analogous situation to a surviving spouse or civil partner and their children and to the justification for the difference in treatment between them. Ratio |
Another way of putting the relationship between article 14 and the substantive Convention rights is that article 14 comes into play whenever the subject matter of the disadvantage constitutes one of the modalities of the exercise of the right guaranteed: see eg Petrovic v Austria (1998) 33 EHRR 307, para 28. PRE |
In that case a father complained that a non-contributory parental leave allowance was only available to mothers and not to fathers. PRE |
At that date, it had not yet been decided that non-contributory state benefits were covered by A1P1, so the question was whether the allowance fell within the ambit of article 8. PRE |
There was no violation of article 8, because the state is under no obligation to provide such an allowance. PRE |
But this allowance paid by the state is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children (para 27). PRE |
By granting such an allowance states are able to demonstrate their respect for family life within the meaning of article 8 (para 29). PRE |
Thus article 14 was applicable (although not violated in that case). PRE |
It could be said that the connection between the organisation of family life and the parental leave allowance was closer in Petrovic than the connection between the organisation of family life and the widowed parents allowance. Ratio |
However, to the same effect is Okpisz v Germany (2005) 42 EHRR 32, where the refusal of child benefit to certain migrants was held to violate article 14 taken with article 8: By granting child benefit, states are able to demonstrate their respect for family life within the meaning of article 8; the benefits therefore c... |
(para 32). PRE |
Most recently, in Aldeguer Toms v Spain (2017) 65 EHRR 24, the court considered a claim for survivors benefits, brought by an unmarried same sex partner before the introduction of same sex marriage in Spain, under article 14 read with both article 8 and A1P1: it reiterated that the notion of family life not only includ... |
Judge Keller, the Swiss Judge, considered that the claim should only have been considered under A1P1, because financial support from the state primarily falls within A1P1; only some additional element, such as a clear legislative intent to provide an incentive for the organisation of family life, could bring it within ... |
In this case, as in Petrovic and Okpisz, such an element clearly exists. Ratio |
In M v Secretary of State for Work and Pensions [2006] 2 AC 91, Lord Nicholls of Birkenhead accepted that the Child Support Act 1991 was one of the ways the United Kingdom evinces respect for children and the life of the family of which the child is part (para 17). PRE |
Widowed parents allowance is only payable if there are children or young people for whose care and support either the deceased or the survivor or both were responsible: it is conditional on the survivor receiving child benefit and thus being a primary carer for such a child. PRE |
It is, as Lord Bingham put it, one of the ways in which the state evinces respect for children and the life of the family of which they are part. PRE |
Indeed, it is a stronger case than child support, which is simply a mechanism for enforcing the parents obligation to maintain ones children (and interestingly, when M got to Strasbourg, the court found a violation of article 14 read with A1P1 and did not find it necessary to consider article 8: JM v United Kingdom [20... |
It is fair to say that the English courts have made rather heavy weather of the ambit point, particularly in connection with article 8, because of its broad and ill- defined scope. Ratio |
In M v Secretary of State for Work and Pensions, Lord Bingham also said this (para 4): It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol (article 1P1), to identify the core values which the provision is intended to protect. Ratio |
But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. Ratio |
At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. Ratio |
At the outer extremity, it may not. Ratio |
This is a difficult passage, because it is accepted that there is no need for the substantive article to be infringed in order for article 14 to be engaged. Ratio |
But it does suggest that the closer the facts come to the protection of the core values of the substantive article, the more likely it is that they fall within its ambit. Ratio |
Our attention was drawn to a number of other English authorities in which the connection of article 14 with article 8 is discussed, but most of those are under appeal and so it would be unwise to comment upon them. Ratio |
In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916; [2018] 2 WLR 1063, Sir Terence Etherton MR agreed with counsel that the only sure common thread running through the various descriptions of the ambit test, for the purposes of article 14, in the several speeches in M [2006] 2 AC 91 is t... |
Having quoted the relevant paragraphs from Petrovic and reviewed the domestic authorities, including M, he summarised the position thus (para 55): The claim is capable of falling within article 14 even though there has been no infringement of article 8. PRE |
If the state has brought into existence a positive measure which, even though not required by article 8, is a modality of the exercise of the rights guaranteed by article 8, the state will be in breach of article 14 if the measure has more than a tenuous connection with the core values protected by article 8 and is dis... |
It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question. PRE |
It may turn out that this is too restrictive a test: for example, core values is a concept derived from the domestic rather than the Strasbourg jurisprudence. Ratio |
But there is no problem applying it to the facts of this case. Ratio |
Widowed parents allowance is a positive measure which, though not required by article 8, is a modality of the exercise of the rights guaranteed by article 8. Ratio |
It has a more than tenuous connection with the core values protected by article 8: securing the life of children within their families is among the principal values contained in respect for family life. Ratio |
There is no need for any adverse impact other than the denial of the benefit in question. Ratio |
The fact that it also falls within the ambit of A1P1 is not a problem. Ratio |
The two articles are safeguarding different rights - respect for family life and respect for property. Ratio |
There is no reason to regard the latter as a lex specialis excluding the former in those cases, such as this, where it applies. Ratio |
I therefore conclude that the facts fall within the ambit, not only of A1P1, but also of article 8. Ratio |
Analogous situation? Ratio |
Unlike domestic anti-discrimination law, article 14 does not require the identification of an exact comparator, real or hypothetical, with whom the complainant has been treated less favourably. Ratio |
Instead it requires a difference in treatment between two persons in an analogous situation. Ratio |
However, as Lord Nicholls explained in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] AC 173, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. PRE |
Sometimes the answer to this question will be plain. PRE |
There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. PRE |
Sometimes, where the position is not so clear, a different approach is called for. PRE |
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