In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48- read judgment
An unmarried mother has won a landmark Supreme Court case which could allow cohabitees to claim Widowed Parent’s Allowance, a benefit previously only applicable to married parents.
Background
Widowed Parent’s Allowance (“WPA”) is a contributory non-means-tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. The widowed parent’s entitlement depends upon the contribution record of the deceased partner. Under the relevant law (“s39A”) the widowed parent can only claim the allowance if he or she was married to or the civil partner of the deceased.
The issue before the court was whether this requirement was an unjustifiable discrimination against the survivor and/or the children on the basis of their marital or birth status, contrary to Article 14 of the Convention on Human Rights together with the right to respect for family life under Article 8, or the protection of property rights in Article 1 of the First Protocol ECHR.
The case was brought by Ms McLaughlin following the death of her partner, John Adams, from cancer on 28th January 2014. Although the couple had lived together for 23 years they had never married. They had four children who were aged between 11 and 19 at the time of his death. Mr Adams had made sufficient contributions for Ms McLaughlin to be able to claim WPA, had they been married. Ms McLaughlin’s claim for WPA was refused by the Northern Ireland Department of Communities. She applied for judicial review of that decision on the ground that s39A was incompatible with the ECHR. The High Court ruled in her favour, declaring s39A incompatible with Art 14 read with Art 8. The Court of Appeal however disagreed, unanimously finding that the legislation was not incompatible with Art 14 read with either Art 8 or A1P1.
It was against this background that Ms McLaughlin appealed to the Supreme Court, with the support of the Child Poverty Action Group.
Article 14 ECHR
Lady Hale gave the lead judgment. The court first examined Art 14, which secures the rights and freedoms of the ECHR without discrimination. It raised four questions
- Do the circumstances fall within the ambit of one or more of the Convention rights?
The court confirmed that whilst Art 14 does not presuppose that there has been a breach of a Convention right, the facts must fall within the ambit of one or more of the rights. It considered it clear that the denial of social security benefits would fall within the ambit of A1P1 and that WPA would fall within Art 8 given that it is a positive measure by the state demonstrating its respect for family life.
- Has there been a difference in treatment between two persons in an analogous situation?
The court examined the decision in Shackell v United Kingdom (App 45851/99) in which the European Court of Human Rights ruled inadmissible a complaint that a denial of widow’s benefits to unmarried surviving partners was discriminatory on the basis that marriage conferred a special status, and was different from cohabitation. In Ms McLaughlin’s case however, the court considered that the relevant facet of the relationship was not the public commitment but the co-raising of children, and for that purpose marriage and cohabitation were analogous. In his concurring judgment Lord Mance considered that the reasoning of the ECtHR in Shackell failed to address the clear purpose of the allowance in that case, namely to continue to cater for the interests of any relevant child. In his view, refusal of the allowance would inevitably operate in a significant number of cases to the detriment of the child, and for that reason Shackell should not be followed by the Supreme Court.
3. Is that difference of treatment on the ground of a relevant status?
The court noted that it is well established both in Strasbourg and domestic law that being unmarried can be a status for the purposes of Art 14, as can being married.
4. Is there objective justification for that difference in treatment?
Objective justification would depend on there being a legitimate aim and a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The court was in no doubt that the promotion of marriage and civil partnership is a legitimate aim. It held however that the mere existence of a legitimate aim is not enough: there has to be a rational connection between the aim pursued and the means employed. It was not a proportionate means of achieving a legitimate aim to deny a surviving parent and their children benefits simply because they were unmarried. WPA exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities (and the needs of the surviving parent and children) are the same whether or not they are married or in a civil partnership. Furthermore, the purpose of WPA is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same regardless of the parents’ marital status. The court’s view was reinforced by the international obligations to safeguard children’s rights, which inform the interpretation of the guarantees contained in the ECHR. The Court also noted that in the great majority of member states of the Council of Europe, survivors’ pensions are paid directly to the children irrespective of birth status.
Remedy
The court was of the view that Ms McLaughlin’s children should not suffer a disadvantage because their parents chose not to marry. By a majority of 4 to 1 the judges concluded that this unjustified discrimination in the enjoyment of a Convention right was sufficient for it to make a declaration of incompatibility under Section 4(2) of the Human Rights Act. They did note however that whilst the exclusion of all unmarried couples from receipt of WPA will amount to unjustified discrimination in a legally significant number of cases, it would not do so in every case. Whether it would be disproportionate to deny a child the benefit of the deceased’s contributions would be a fact specific question given the many permutations of parentage which might result in entitlement to the allowance. The court gave the recent introduction into the household of a child for whom only the surviving spouse is responsible as one possible example.
Dissent
Lord Hodge, dissenting, was of the view that the purpose of the provision of WPA is to assist the surviving parent rather than to benefit the bereaved children. He disagreed with the majority that the circumstances justified a departure from Shackell, and considered the cohabiting survivor not to be analogous to the survivor who was married to or in a civil partnership with the deceased. In his view the difference in treatment was not manifestly disproportionate, and was objectively justified.
Conclusion
UK law must be interpreted, so far as possible, in a way that is compatible with the HRA. Under Section 4 HRA, if a court considers a piece of domestic legislation incompatible with the HRA it can make a declaration of incompatibility. Due to parliamentary sovereignty, such a declaration does not affect the validity of the legislation and it remains a decision for Parliament to decide whether to amend the law.
WPA was abolished in April 2017 and replaced with Bereavement Support Payment, to which cohabiting couples remain unentitled. Therefore it is now a matter for Parliament to decide whether to amend the benefit to include unmarried parents. Although Ms McLaughlin’s case was brought in Northern Ireland, its implications will affect the rest of the UK where the wording of the eligibility criteria for the benefit is the same.
The primary focus of the majority judgment in this case was on the children. With cohabiting relationships being the fastest growing type of family in the UK, an increasing number of children will be born outside marriage. The Supreme Court’s ruling is an indication that those children should be equally as entitled to financial assistance upon the death of a parent as those born to married parents. Their needs, after all, are the same regardless of the marital status of their parents.
The ruling comes at a time when the treatment of unmarried couples under UK law is in the spotlight. It is the third high-profile case in the past eighteen months in which existing domestic legislation has been found to discriminate against cohabiting couples. The previous two cases were covered on the UK Human Rights Blog and can be found at the following links: Denise Brewster and Jacqueline Smith.
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