text stringlengths 5 5.67k |
|---|
But the test is not that the legislation must operate incompatibly in all or even nearly all cases. Ratio |
It is enough that it will inevitably operate incompatibly in a legally significant number of cases: see Christian Institute v Lord Advocate [2016] UKSC 51; 2016 SLT 805, para 88. Ratio |
A declaration of incompatibility does not change the law: it is then for the relevant legislature to decide whether or how it should be changed. Ratio |
It also does not follow that the new law is incompatible. Ratio |
Although we have been advised of its existence, we have not heard argument about it, and the argument would no doubt be very different from the argument we have heard in this case. Ratio |
But I do not see the fact that the law has now changed as a reason for not making a declaration of incompatibility: the old law will remain relevant for deaths taking place before March 2017 for a very long time. Ratio |
I would therefore allow the appeal and make a declaration that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with article 14 of the ECHR, read with article 8, insofar as it precludes any entitlement to widowed parents allowance by a surviving unmarried partner... |
LORD MANCE: (with whom Lady Hale, Lord Kerr and Lady Black agree) RPC |
This appeal had led to disagreement between a majority view contained in the judgment prepared by Lady Hale and a minority view expressed by Lord Hodge. Ratio |
While I come down in favour of the former view, I recognise the force of a number of points made by Lord Hodge. Ratio |
The majority view faces the difficulty that the European Court of Human Rights declared inadmissible all aspects of the complaint made by Joanna Shackell in Shackell v United Kingdom (Application No 45851/99). Ratio |
That complaint included as one element the refusal to an unmarried mother of a widowed mothers allowance following the death of her partner in 1995. Ratio |
The Welfare Reform and Pensions Act 1999 replaced that allowance with widowed parents allowance, to cater for the death of either member of a married couple, but nothing in that change affects the reasoning in Shackell. Ratio |
Equally, I do not think that it is possible to treat Shackell as a case where the court failed to distinguish between the benefits there claimed or to ask whether they should be treated separately or to focus on the children. Ratio |
Ms Shackell, represented by a welfare rights worker, made a distinct claim that her children were discriminated against by reason of their illegitimate status, arguing that the refusal to pay her widows benefits in respect of her children had a direct financial consequence on her family life: violation of article 8 tak... |
The court dealt with this specifically as a complaint about non-payment of widowed mothers allowance, to which it gave a distinct response as follows: whilst it is true that the applicant does not receive Widowed Mothers Allowance, the reason for her not being eligible is that she and her late partner were not married.... |
It is not related to the status of the children The court added that it followed that the applicants ineligibility for widowed mothers allowance was compatible with the Convention for the same reasons as those which it had already set out in rejecting the claim so far as it related to widows benefits simpliciter. Ratio |
We are therefore squarely confronted with a need to consider whether the Courts approach in Shackell, set out in para 48 above, should now be regarded as wrong or should not be followed, at least domestically. Ratio |
In my opinion, that is indeed the position. Ratio |
The existence of marriage was of course a condition of eligibility for widowed mothers allowance in Shackell; that was the very basis of complaint there - just as the requirement of marriage or a civil partnership is on this appeal the basis of complaint in relation to widowed parents allowance. Ratio |
But the reasoning in Shackell fails to address what I regard as the clear purpose of this allowance, namely to continue to cater, however broadly, for the interests of any relevant child. Ratio |
Refusal of the allowance to the survivor of a couple who are neither married nor civil partners cannot simply be regarded as a detriment to the survivor of the couple. Ratio |
Refusal would inevitably operate in a significant number of cases to the detriment of the child. Ratio |
There is common ground between the majority and the minority that the widowed parents allowance falls within the ambit of article 8 (see Lord Hodge, para 70). Ratio |
In my opinion, its refusal was and is prima facie a violation of article 14 read with article 8, as well as of article 14 read with A1P1. Ratio |
Bearing in mind that the main purpose of widowed parent allowance is to secure the continuing well-being of any child of a survivor, there seems in this context to be no tenable distinction, and indeed manifest incongruity in the difference in treatment, between a child of a couple who are married or civil partners and... |
In a large number of cases the effect would also be to discriminate against a child who was illegitimate. Ratio |
Indirect discrimination does not depend on the reason for or purpose of the conduct complained of, but on its effect. Ratio |
The European Court of Human Rights does not appear to have addressed this aspect in its brief reasoning set out in para 48 above. Ratio |
And legitimacy or illegitimacy is a status. Ratio |
As Lady Hale points out in paras 42-43, we do not need to consider other situations on this appeal. Ratio |
A policy in favour of marriage or civil partnership may constitute justification for differential treatment, when children are not involved. Ratio |
But it cannot do so in relation to a benefit targeted at the needs and well-being of children. Ratio |
The fact that the widowed parents allowance may cease or be suspended in some situations is no answer to this. Ratio |
The underlying thinking is no doubt that adequate support will be or is likely to be derived from another source in such situations. Ratio |
The provisions for cessation or suspension may not be entirely logical or reflect entirely accurately the circumstances in which adequate alternative support may be expected. Ratio |
But, if so, that does not appear to me to affect the analysis that widowed parents allowance is fundamentally aimed at securing the needs and well-being of children. Ratio |
I take the points made by Lord Hodge (paras 85-87) that it is not always easy to judge how different benefits interact and how easy they may be to administer. Ratio |
But the position of couples who are neither married nor civil partners is already catered for in other situations known to the law. Ratio |
The starting point is surely that, where children are for relevant purposes in a similar situation, the law would be expected to deal with them in the same way. Ratio |
I am not persuaded that any substantial grounds exist for thinking that this was not and is not feasible, as well as just, in the present context. Ratio |
For these reasons, and for the additional reasoning on further points mentioned in Lady Hales judgment, I join with the majority in allowing this appeal relating to widowed parents allowance. RPC |
LORD HODGE: (dissenting) RPC |
I regret that I find myself in disagreement with the majority on this appeal. RPC |
In my view the widowed parents allowance (the WPA) is not incompatible with article 14 of the European Convention on Human Rights (the ECHR) when taken with either article 8 of the ECHR or article 1 of the First Protocol to the ECHR (A1P1). RPC |
I am very grateful to Lady Hale for setting out the facts, the evolution of bereavement benefits and the legislation, which I do not have to repeat. RPC |
In explaining my disagreement, I will draw attention to certain features of the legislation which are to my mind of greater importance than the majority acknowledges. RPC |
We are concerned with the version of section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (the 1992 Act) which was in force when Mr Adams died on 28 January 2014 and which Lady Hale has set out in para 13 of her judgment. Ratio |
The discrimination which the majority sees as incompatible with the ECHR is the exclusion of the survivor of a couple who were not married or in a civil partnership from the benefit of the WPA because, it is reasoned, the discrimination, which that exclusion entails, has not been justified and so is contrary to article... |
The legislation STA |
There are a number of features of the WPA which are material to my analysis. Ratio |
First, the WPA is a contributory benefit. Ratio |
The deceased spouse or civil partner (the Deceased) must have satisfied the prescribed contribution conditions (section 39A(2) and Schedule 3 Part I, paragraph 5). Ratio |
The benefit which becomes available to the surviving spouse or civil partner (the Survivor) is thus the result of the Deceaseds contributions. Ratio |
Secondly, the WPA is not means-tested but is payable even if the Survivor earns a substantial income through work, and it is subject to income tax as part of the Survivors income (formerly under section 617 of the Income and Corporation Taxes Act 1988 (ICTA) and now under Part 9, chapter 5 of the Income Tax (Earnings a... |
As discussed below, the WPA is treated as pension income of the Survivor. Ratio |
Thirdly, the WPA is payable not only when the Survivor has a responsibility for children (section 39A(3)) but also if the Survivor is a woman and is pregnant in specified circumstances (section 39A(2)(b) & (c)). Ratio |
Fourthly, the WPA ceases to be payable (a) when the Survivor reaches pensionable age (section 39A(4A)(ii)) and (b) if the Survivor marries or enters into a civil partnership (section 39A(4) and (4A)), and is not payable so long as the Survivor cohabits with a person of the opposite sex as if they were married or with a... |
The first and second features - that the Survivors entitlement is dependent on the Deceaseds contributions and is not means-tested - point to the importance of the nexus between the Survivor and the Deceased. Ratio |
It is the nature of that relationship which gives the Survivor the right to benefit from the deceaseds contributions. Ratio |
The WPA is payable not only if there is a child of the Deceased and the Survivor or a child in respect of whom the Deceased had been entitled to child benefit immediately before his or her death (section 39A(3)(a) & (b)) but also if the Deceased and the Survivor had been living together immediately before the death and... |
Thus, the WPA is made available to the Survivor if he or she is responsible for a child for whom the Deceased was not responsible. Ratio |
The third and fourth features - the availability of the WPA to a pregnant woman and especially the circumstances in which WPA ceases to be payable or is suspended, point to the focus of the benefit on the provision of assistance to the bereaved Survivor: WPA, by replacing income earned by the Deceased, gives the Surviv... |
That replacement income is ended or suspended when the Survivor enters into a relationship with another which may be expected to yield alternative financial support. Ratio |
In the public consultation document, Bereavement Benefit for the 21st century, (Cm 8221) which the Secretary of State for Work and Pensions presented to Parliament in December 2011, it was recognised that the bereavement benefits were not affected by paid employment and that the majority of people who applied for those... |
In that document the WPA was described as providing support towards the additional costs of raising children (p 14) and the function of it and other bereavement benefits was described in these terms: a key function of bereavement benefits is to provide some financial security in the period immediately after spousal ber... |
(p 16) This latter description is not wholly accurate as the WPA, unlike the short-term bereavement allowance, is not confined to the 52 weeks immediately after the bereavement. Ratio |
But the focus on the financial security of the Survivor applies to each of the bereavement benefits. Ratio |
This focus on the position and welfare of the Survivor is consistent with the evolution of bereavement benefits which Lady Hale has summarised in paras 4 to 12 of her judgment. Ratio |
The initial aim of bereavement benefits was to relieve the plight of the widow under pensionable age who lost the support of a bread-winning husband at a time when many married women did not work. Ratio |
Social change, including the increase in the number of married women and widows who engage in paid work, led to the demise of the widows pension, which was payable to a widow aged over 45 when widowed and continued to be paid until she drew her retirement pension, and its replacement with a bereavement allowance for up... |
The WPA, as a contributory benefit, stands in contrast to means-tested benefits for the support of children such a child tax credit, which now is being replaced by universal credit. Ratio |
Such means-tested benefits do not require a nexus between a deceased contributor and a surviving claimant but are payable because of the need to provide for the welfare of children. STA |
The WPA counts as income in relation to means-tested benefits but 10 of the WPA is disregarded when calculating entitlement to means-tested benefits: Regulation 104 of and paragraph 16 of Schedule 8 to the Employment and Support Allowance Regulations (Northern Ireland) 2008 (SI 2008/280). STA |
Accordingly, a person in receipt of means tested benefits will often obtain only limited assistance from an entitlement to WPA. STA |
Securing ECHR rights without discrimination Ratio |
Lady Hale has set out article 14 of the ECHR and the four questions which it raises in para 15 of her judgment. Ratio |
In relation to the first question (do the circumstances fall within the ambit of one or more of the Convention rights?), it has been established in Willis v United Kingdom (2002) 35 EHRR 21 that the denial of a contributory social security benefit falls within the ambit of the A1P1 right. Ratio |
I therefore postpone my consideration of the concept of the ambit of a Convention right until I consider article 14 taken with article 8 below. Ratio |
In Willis the challenge to the denial of a widows payment and a widowed mothers allowance (the precursor of the WPA) to widowers succeeded under article 14 taken in conjunction with A1P1 and the Strasbourg court (the ECtHR) did not have to consider the complaint under article 14 in conjunction with article 8. Ratio |
A similar challenge under article 14 taken in conjunction with A1P1 was made by an unmarried mother of three children who had had a long-term relationship with a man who was the childrens father in the case of Shackell v United Kingdom (Application No 45851/99) decision of 27 April 2000. Ratio |
She complained that the United Kingdoms social security legislation discriminated against her because she was an unmarried surviving partner by denying her a right to the widows benefits available to married women (including the widowed mothers allowance). Ratio |
The ECtHR treated the right to widows benefits as a pecuniary right for the purposes of A1P1 and saw no need to determine whether the facts also fell within the ambit of article 8. Ratio |
The court by majority declared the application inadmissible because it was manifestly ill-founded within the meaning of article 35 of the ECHR. Ratio |
In reaching that conclusion the ECtHR considered not only the applicants claim to widows benefits generally but also the childrens claim that they were discriminated against in relation to widowed mothers allowance. Ratio |
The ECtHR referred to the decision of the European Commission of Human Rights in Lindsay v United Kingdom (1987) 9 EHRR CD 555 in which the Commission rejected a comparison between unmarried cohabitees and a married couple in relation to the incidence of income tax on the basis that they were not in analogous situation... |
The Commission stated: Though in some fields the de facto relationship of cohabitees is now recognised, there still exist differences between married and unmarried couples, in particular, differences in legal status and legal effects. Ratio |
Marriage continues to be characterised by a corpus of rights and obligations which differentiate it markedly from the situation of a man and woman who cohabit. Ratio |
The court, while recognising that since 1986 there had been increased social acceptance of stable personal relationships outside marriage, stated: However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter into it. Ratio |
The situation of the applicant is therefore not comparable to that of a widow. Ratio |
Recognising that the ECHR gives States a certain margin of appreciation in the assessment of the extent to which differences in otherwise similar situations justify a different treatment in law, the court held that the promotion of marriage, by conferring limited benefits for surviving spouses, could not be said to exc... |
Shackell was decided in 2000; and in 2008 the Grand Chamber of the ECtHR confirmed that approach in Burden v United Kingdom (2008) 47 EHRR 38. Ratio |
In that case two unmarried sisters, who had lived together all their lives and who for 31 years had jointly owned the house in which they lived, complained under article 14 taken with A1P1 that it was unjustified discrimination for the UK tax system to deny them the exemption from inheritance tax which was available to... |
In holding that there was no discrimination and therefore no violation of article 14 taken with A1P1, the Grand Chamber stated (para 63): Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. Ratio |
The exercise of the right to marry is protected by article 12 of the Convention and gives rise to social, personal and legal consequences. Ratio |
In Shackell, the court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors benefits, since marriage remains an institution which is widely accepted as conferring a particular status on those who enter it. Ratio |
The Grand Chamber considers that this view still holds true. Ratio |
(Emphasis added) The Grand Chamber went on to state (para 65) that what set marriage and civil partnership apart from other forms of cohabitation was the express public undertaking of a body of rights and obligations of a contractual nature. Ratio |
The legally binding agreement which marriage or civil partnership entailed rendered those relationships fundamentally different from the relationship of cohabitation, regardless of its long duration. Ratio |
See also, more recently albeit in the different context of testimonial privilege, Van der Heijden v Netherlands (2012) 57 EHRR 13, paras 69 and 84. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.