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Thus in Yiit v Turkey (2011) 53 EHRR 25, the Grand Chamber expressed the view (in para 72) that marriage is characterised by a corpus of rights and obligations that differentiated it materially from other situations of a man and a woman who cohabit and stated: States have a certain margin of appreciation to treat diffe... |
I am not persuaded that this court has grounds for departing from this consistent line of authority from the ECtHR which the Grand Chamber has recently endorsed in Burden and Yiit. Ratio |
It provides a clear answer to a complaint based on article 14 taken with A1P1. Ratio |
There is no suggestion that Strasbourg jurisprudence is evolving on this issue in the context with which this appeal is concerned, namely the entitlement of a surviving partner to state benefits arising out of the deceaseds contributions. Ratio |
Further, the ECtHR has not suggested that an analysis of those complaints in the context of article 14 taken with article 8 would have caused it to have reached a different decision in Shackell. Ratio |
In my view, the ECtHRs treatment of marriage and civil partnership as conferring a status which distinguishes them from cohabitation, while not binding on this court, is a very important component of any analysis of a challenge under article 14 taken together with article 8, to which I will turn. Ratio |
But it is necessary to consider first whether the present case falls within the ambit of article 8. Ratio |
The ambit of article 8 Ratio |
It has long been established in the jurisprudence of the ECtHR that article 14, which seeks to secure without discrimination the enjoyment of the rights and freedoms contained in the substantive provisions of the ECHR and its protocols, does not require any breach of those substantive provisions. Ratio |
It is sufficient for article 14 to apply that the facts of the case fall within the ambit of one or more of those substantive provisions: Abdulaziz Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 71; Inze v Austria (1987) 10 EHRR 394, para 36; Petrovic v Austria (1998) 33 EHRR 357, para 22; and, more re... |
In the latter case (para 74) the ECtHR continued: The prohibition of discrimination enshrined in article 14 applies to those additional rights, falling within the general scope of any Convention article, for which the state has voluntarily decided to provide. Ratio |
While article 8 does not require the state to provide financial support to a family in the form of state benefits, such support as the state choses to provide must be provided without discrimination. Ratio |
For the ECtHR has held that family life in article 8 includes not only dimensions of a purely social, moral or cultural nature but also encompasses material interests: Merger v France (2004) 43 EHRR 51, para 46; Aldeguer Toms (above) para 72. Ratio |
Thus, for example, the provision of child benefits to the parents of a child has been characterised as a way by which states are able to demonstrate their respect for family life: Okpisz v Germany (2005) 42 EHRR 32, para 32. Ratio |
Article 8 confers a right that the state will show respect for private and family life. Ratio |
The provision of financial support is one of the modalities of the exercise of a right guaranteed: Petrovic (above), para 28. Ratio |
I interpret modality as a particular mode in which something is done or expressed; in relation to article 8, it is a way in which the state expresses its support for family life. Ratio |
position thus: In our domestic jurisprudence, Lord Nicholls of Birkenhead summarised the Article 14 is engaged whenever the subject matter of the disadvantage comprises one of the ways a state gives effect to a Convention right (one of the modalities of the exercise of a right guaranteed). Ratio |
For instance, article 8 does not require a state to grant a parental leave allowance. Ratio |
But if a state chooses to grant a parental leave allowance it thereby demonstrates its respect for family life. Ratio |
The allowance is intended to promote family life. Ratio |
Accordingly the allowance comes within the scope of article 8, and article 14 read with article 8 is engaged: Petrovic v Austria (2001) 33 EHRR 307, paras 27-30. Ratio |
(M v Secretary of State for Work and Pensions [2006] 2 AC 91, para 16) Ratio |
More recently, in R (Steinfield) v Secretary of State for International Development [2018] UKSC 32; [2018] 3 WLR 415, in which the appellants successfully challenged as discriminatory the Civil Partnership Act 2004 because it did not make civil partnerships available to different-sex couples, Lord Kerr of Tonaghmore sa... |
Counsel for the respondent did not seek so to argue before this court. Ratio |
They were right not to do so. Ratio |
Recent case law from the European Court of Human Rights (ECtHR) makes it clear that no detrimental effect need be established. Ratio |
In particular, in Vallianatos [v Greece (2013) 59 EHRR 12] ECtHR found that the introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention: paras 80-92. Ra... |
As a result, in order to avoid a finding of an infringement of article 14, the Secretary of State had to show the unequal treatment of different sex couples was justified. PRE |
Like Lady Hale, I see no basis for the assertion that A1P1 is a lex specialis which excludes consideration of article 8. Ratio |
When the ECtHR has decided cases under article 14 taken with A1P1 and found it unnecessary to consider a claim relating to the same facts under article 14 taken with article 8, it has not suggested that A1P1 has excluded consideration of article 8. Ratio |
When the ECtHR has dismissed a challenge under article 14 taken with A1P1 and has then declined to consider article 14 taken with article 8 (as it did in Shackell), one may readily infer that the ECtHR does not see a different result arising from the latter assessment. Ratio |
Indeed, it is questionable whether one can avoid such an inference. Ratio |
But I see no justification for inferring more than that. Ratio |
In my view A1P1 is a more natural home for social security benefits such as the WPA than article 8 because it is a benefit which is directed to assist the bereaved widow/widower or civil partner who has lost the financial support of the deceased. Ratio |
But it is payable if and only if the Survivor has responsibility for children and it thereby can be seen as a means, albeit indirectly, by which the state shows respect for family life. Ratio |
I agree therefore that the WPA falls within the ambit of article 8. Ratio |
It is the positive act of providing the WPA, which provides assistance to the Survivor who is responsible for children and thereby promotes family life, that brings the benefit within the ambit of article 8. Ratio |
The remaining questions Ratio |
As a result, it is necessary to consider the other three questions which Lady Hale has set out in para 15 of her judgment. Ratio |
They are: Is that difference of treatment on the ground of one of the (1) Has there been a difference of treatment between two persons who are in an analogous situation? (2) characteristics listed or other status? (3) Is there an objective justification for that difference in treatment? Ratio |
I agree with Lady Hale that not being married can be a status: Yiit v Turkey (2011) 53 EHRR 25, paras 79-80; In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] AC 173, paras 8 (Lord Hoffmann), 107 (Lady Hale) and 132-133 (Lord Mance). Ratio |
Different treatment in the field of state benefits based on a person not being married would not however be a suspect ground which requires the court to exercise closer scrutiny: see, by analogy, Swift v Secretary of State for Justice [2013] EWCA Civ 193; [2014] QB 373, Lord Dyson MR at paras 24-25. Ratio |
Where I differ from the majority is on the first and third questions above, to which I now turn. Ratio |
Those questions are not rigidly compartmentalised. Ratio |
The ECtHR often addresses the third question without conducting a separate analysis of the first question. Ratio |
This is unsurprising because there is a considerable overlap between the two questions in the assessment as to whether there has been unjustifiable discrimination. Ratio |
Was there unjustifiable discrimination? Ratio |
The first question is whether an unmarried bereaved cohabitee is in an analogous situation to a bereaved survivor who had been married to or in a civil partnership with the deceased. Ratio |
In my view he or she is not. Ratio |
As the appellant is a woman, I will refer to the survivor as she in the discussion which follows. Ratio |
The majority suggests that they are in an analogous situation because it accepts Treacy Js analysis that the relevant facet of the relationship between the deceased and the survivor was the co-raising of children (emphasis added). Ratio |
It is stated that the WPA is payable only if the survivor is responsible for the care of children who were at the date of death the responsibility of one or both of them (para 27). Ratio |
That statement is correct. Ratio |
But it does not follow, as the majority asserts, that the purpose of the WPA is to benefit the children. Ratio |
There are a number of important characteristics of the WPA which show that it is a benefit to assist the bereaved Survivor rather than a benefit for bereaved children, although I recognise that it would benefit the children by providing additional income to the family unit. Ratio |
First, as I have said, the WPA is a benefit which replaces the lost income of the deceased and thereby gives the Survivor the opportunity not to work or to work reduced hours while she is responsible for children. Ratio |
Unlike benefits which are paid to meet a specific need of the claimant, the WPA, as an income replacing benefit, is taxable as pensions income in the hands of the Survivor: see formerly section 617 of ICTA and now sections 565, 566 and 577 of ITEPA. Ratio |
Secondly, the WPA ceases to be payable while the Survivor remains responsible for relevant children in several circumstances which are the personal circumstances of the Survivor. Ratio |
If she reaches retirement age, if she remarries or enters into a civil partnership, so long as she cohabits with a partner of either gender, or if she dies, the WPA ceases to be payable. Ratio |
It is to my mind striking that the WPA ceases to be paid as soon as the Survivor enters into one of the specified relationships, regardless of whether the Survivors new partner undertakes any responsibility for the children. Ratio |
If the WPA were properly characterised as a benefit for the bereaved children, it might be difficult to defend the rationality of these rules. Ratio |
Thirdly, the WPA is a contributory benefit. Ratio |
In most circumstances it is payable only if the Deceased has made sufficient National Insurance contributions. Ratio |
The Survivors benefits, which are treated in UK tax law as a pension, are the product of the Deceaseds contributions. Ratio |
Thus the nature of the nexus between the Deceased and the Survivor takes on a particular importance. Ratio |
Fourthly, the sums payable to the Survivor are not related to the childrens needs or increased by reference to the number of children for whom she is responsible. Ratio |
Instead, the rate of the WPA is calculated in a way similar to that of a Category A retirement pension. Ratio |
The Survivor receives a basic pension at a weekly rate and an additional pension calculated by reference to a surplus created by the Deceaseds earnings or deemed earnings during his working life: the 1992 Act sections 39C, 44-45A and 46(2) and Schedule 4A. It is unsurprising that the rules governing the WPA focus on th... |
When one pays due regard to these characteristics of the WPA, the reasoning of the ECtHR in Shackell, which recognises the importance of the status of the Survivor, is directly relevant and strongly supports the conclusion that the cohabiting survivor is not analogous to the Survivor who was married to or in a civil pa... |
I see no basis for reaching a different view in relation to article 14 taken with article 8 than that which the ECtHR has reached in relation to article 14 taken with A1P1. Ratio |
On a strict analysis the question whether discrimination is objectively justified does not need to be addressed if one concludes, as I have, that the persons are not in an analogous situation. Ratio |
Nonetheless, in view of my disagreement with my colleagues, it is appropriate to address this question. Ratio |
In so doing, I observe that considerations which point against the persons being in an analogous situation also have a bearing on the justification of their being treated differently by the state. Ratio |
It is usual, when addressing justification, to ask whether the difference in treatment pursues a legitimate aim and whether, in relation to the difference in treatment, there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised: see for example Yiit v Turkey (abov... |
The contracting states are given a certain margin of appreciation in their assessment of whether differences in otherwise similar situations justify a different treatment in law. Ratio |
In Stec at para 52, which Lady Hale quotes more fully at para 33, the Grand Chamber stated: The scope of this margin will vary according to the circumstances, the subject matter and the background. Ratio |
It is not disputed that the promotion of marriage or civil partnerships, by means of which parties undertake binding legal obligations which may tend to support the long-term stability of their relationships, is a legitimate aim for the state to pursue. Ratio |
In the United Kingdom there are a range of measures in the fields of taxation and social security benefits which promote such legal relationships. Ratio |
These include the marriage allowance in the context of income tax, the ability of a couple to transfer assets between each other without a charge to tax in order to take advantage of income tax and capital gains tax allowances, and the ability of spouses and civil partners to transfer assets to each other free of inher... |
In the field of social security benefits, entitlement to a survivors retirement pension and entitlement to the WPA depend on the existence of a marriage or a civil partnership. Ratio |
There is thus a range of rules which confer financial benefits on persons who are or were married or in a civil partnership. Ratio |
In this context it is of no real significance that the average informed citizen may not have been aware of the WPA when entering into the legal obligations which marriage or civil partnership entails. Ratio |
Such a person is likely to have been aware that there were fiscal and other benefits to such relationships even if unaware of their details. Ratio |
I am unpersuaded that any ignorance of the WPA calls into question the rational connection between the measure in question and the undisputed legitimate aim or the proportionality of the difference of treatment. Ratio |
In this appeal the majority has referred to the test which the ECtHR applies in social security benefit cases and asked whether the difference in treatment is manifestly without reasonable foundation. Ratio |
I agree that that is the test which should be applied: R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550. Ratio |
The majority concludes that the difference in treatment is manifestly disproportionate. Ratio |
I cannot agree. Ratio |
In considering, as did the Grand Chamber in Stec, the circumstances, the subject matter and background, the matters which I have discussed in paras 65-70 above demonstrate that the target of the contributory benefit, which is the WPA, is the Survivor, if she has responsibility for children, and if she has not obtained ... |
The children benefit only indirectly from the WPA which may terminate while the Survivor remains responsible for them. Ratio |
The appellant and the Child Poverty Action Group seek to shift the focus from the Survivor onto the children and argue that the difference in treatment is largely based on the birth status of the children. ARG |
This is not so: the WPA is the Survivors benefit. Ratio |
It is of note that the ECtHR rejected a similar argument in Shackell (in para 2), in which the applicant had argued that her lack of an entitlement to the WPA discriminated against children because of their illegitimate status. Ratio |
While there may be good policy reasons for a benefit which is directed at bereaved children, as the Child Poverty Group submits and commentators in the press have argued when this appeal was heard, that is not the nature of the WPA. Ratio |
Such questions of social and economic policy fall within the remit of the democratically elected legislature and are beyond the remit of the courts. Ratio |
The references to the international obligations of the United Kingdom in relation to children (para 40 of the majority judgment) lose their force when attention is paid to the characteristics of the WPA. Ratio |
In my opinion there is no disproportionality in treating a cohabitee survivor differently from a surviving spouse or civil partner. RPC |
The WPA falls clearly within the ambit of A1P1. RPC |
It falls within the ambit of article 8 only indirectly: by giving the Survivor a pension, to which the Deceased and not she has contributed, it enables her not to work or to work fewer hours than she might otherwise have to. RPC |
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