In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48

Siobhan McLaughlin cohabited with her partner for 23 years and had four children before his death. She was denied widowed parent's allowance because they were unmarried. The Supreme Court declared the legislation incompatible with Article 14 ECHR read with Article 8.

Facts

Ms Siobhan McLaughlin and her partner, John Adams, cohabited for 23 years and had four dependent children when Mr Adams died in January 2014. They had not married because Mr Adams had promised his first wife he would never remarry. Mr Adams had made sufficient National Insurance contributions to entitle Ms McLaughlin to bereavement payment and widowed parent’s allowance (WPA) had they been married. The Northern Ireland Department for Communities refused both claims because section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 restricts WPA to surviving spouses and civil partners.

At first instance, Treacy J granted a declaration of incompatibility in respect of WPA but rejected the bereavement payment claim. The Court of Appeal allowed the Department’s appeal. Ms McLaughlin appealed to the Supreme Court.

Issues

The principal issue was whether the requirement in section 39A that the survivor must have been married to or in a civil partnership with the deceased unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status, contrary to Article 14 ECHR read with either Article 8 or A1P1. The court addressed the four standard Article 14 questions: ambit, analogous situation, status, and justification.

Arguments

Appellant

Ms McLaughlin, supported by the Child Poverty Action Group and the National Children’s Bureau, argued that the difference in treatment was largely based on the birth status of the children, a suspect ground requiring careful scrutiny. The marriage condition meant affected children were predominantly those born to unmarried parents. The purpose of WPA, being conditional on responsibility for a child, was to benefit children, whose needs were identical regardless of whether their parents had married.

Respondent

The Department argued the legitimate aim was to promote the institutions of marriage and civil partnership by conferring eligibility only on spouses or civil partners of the contributor. Marriage conferred a special status (relying on Shackell v United Kingdom, Burden v United Kingdom, and Yiğit v Turkey). Administrative difficulties would arise if cohabitation had to be investigated.

Judgment

The Supreme Court, by a majority (Lady Hale, Lord Mance, Lord Kerr and Lady Black; Lord Hodge dissenting), allowed the appeal and made a declaration of incompatibility.

Ambit

The denial of a contributory benefit fell within the ambit of A1P1 (following Willis v United Kingdom). It also fell within the ambit of Article 8 because WPA is a positive measure that, while not required by Article 8, is a modality of the exercise of the right to respect for family life. It has more than a tenuous connection with the core values protected by Article 8: securing the life of children within their families. A1P1 is not a lex specialis excluding Article 8.

Analogous situation

Lady Hale held that, examining the purpose of the measure, the survivor was in an analogous position to a widowed spouse. The relevant facet of the relationship was the co-raising of children, not the public commitment of marriage. The situation of the children was an essential part of the comparison and was the same regardless of whether the parents had married. Shackell was not conclusive because it had not separately examined the purpose of each benefit or focused on the children.

Status

It was well established that being unmarried can constitute a status under Article 14.

Justification

While promoting marriage and civil partnership is a legitimate aim, the difference in treatment was manifestly without reasonable foundation. WPA exists because of the responsibilities of the deceased and survivor towards their children; those responsibilities and the financial loss caused by the parent’s death are identical regardless of marital status. International obligations under the UNCRC (Articles 2, 3 and 26) and the ICESCR reinforced this conclusion, as did the European consensus that survivors’ benefits should be available irrespective of birth status. The allowance is paid to benefit the children, who should not suffer disadvantage because their parents chose not to marry.

Lord Mance’s concurrence

Lord Mance acknowledged the force of Lord Hodge’s dissent but agreed with the majority. He concluded that Shackell should not be followed: its reasoning failed to address the clear purpose of the allowance, namely to cater for the interests of any relevant child. Refusal would inevitably operate to the detriment of the child in a significant number of cases, and a policy in favour of marriage cannot justify differential treatment in relation to a benefit targeted at the needs of children.

Lord Hodge’s dissent

Lord Hodge would have dismissed the appeal. He considered WPA was a Survivor’s benefit, not a children’s benefit: it is taxable as pension income; it ceases on remarriage, civil partnership, cohabitation or attainment of pensionable age regardless of continuing responsibility for children; it is contributory and depends on the nexus between the deceased contributor and the survivor; and the rate is not calculated by reference to the children’s needs. The consistent Strasbourg authority (Shackell, Burden, Yiğit) treats marriage as conferring a special status not analogous to cohabitation. The promotion of marriage was a legitimate aim and the difference in treatment was not manifestly without reasonable foundation.

Implications

The court declared section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 incompatible with Article 14 ECHR read with Article 8 insofar as it precludes any entitlement to WPA by a surviving unmarried partner. A declaration of incompatibility does not change the law: it is for the legislature to decide whether and how to amend it.

The decision is significant for several reasons. It establishes that, in the specific context of a contributory benefit conditional upon the care of children, the survivor’s marital status cannot justify excluding cohabiting partners and their children from a benefit that exists to mitigate the financial loss following a parent’s death. The reasoning closely ties the conclusion to the children-focused purpose of the allowance and the international obligations regarding children’s rights.

The judgment is carefully limited. Lady Hale acknowledged that the exclusion of all unmarried couples will not always operate incompatibly: different factual permutations (such as the recent introduction into the household of a child for whom only the surviving spouse is responsible) may produce different results. The test is whether the legislation will inevitably operate incompatibly in a legally significant number of cases. The court did not rule on the new bereavement support payment introduced in 2017, although the old law would remain relevant for many years for deaths before March 2017.

The decision matters particularly to bereaved cohabiting parents and their children, and signals a willingness in domestic courts to depart from older Strasbourg admissibility decisions such as Shackell where the reasoning failed to engage adequately with the position of children. It also illustrates the analytical interplay between Article 14 with Article 8 and Article 14 with A1P1, confirming that A1P1 does not exclude Article 8.

Verdict: The appeal was allowed by a majority of 4-1 (Lord Hodge dissenting). The Supreme Court made a declaration under section 4(2) of the Human Rights Act 1998 that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with Article 14 ECHR read with Article 8 insofar as it precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased.

Source: In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48