This briefing is for members and their staff dealing with constituency casework related to the EU Settlement Scheme deadline.
What is Widowed Parent’s Allowance?
Widowed Parent’s Allowance, together with the lump-sum Bereavement Payment and the Bereavement Allowance, were introduced in 2001 to replace the previous system of widow’s benefits. These benefits have now in turn been replaced by a new benefit – Bereavement Support Payment – for people bereaved on or after 6 April 2017. Widowed Parent’s Allowance is still however payable to those bereaved before this date who have dependent children. Widowed Parent’s Allowance is paid for as long as the recipient is eligible to receive Child Benefit (which is payable for young people until they reach 16, or 20 in some cases).
Can people get bereavement benefits if they were not married?
Bereavement benefits have only ever been payable to people who were married (or in a Civil Partnership). There are no exceptions, even for cohabiting partners with children. This rule has been carried over to the new Bereavement Support Payment. As section 7.3 of our Commons Library briefing on Bereavement Support Allowance indicates, there have been calls to extend bereavement benefits to unmarried partners – though successive governments, including the current one, have resisted this.
What did the Supreme Court decide in the McLaughlin case?
Siobhan McLaughlin had lived with her partner, John Adams, for 23 years until his death on 28 January 2014. They had four children. Ms McLaughlin’s claim for Widowed Parent’s Allowance was refused by the Northern Ireland Department of Communities because they were not married. She applied for judicial review of the decision on the grounds that the exclusion of those who were not married to or a civil partner of the deceased was incompatible with the European Convention in Human Rights (ECHR).
In its judgment of 30 August 2018 ( UKSC 48), by a majority of four to one the Supreme Court ruled that the refusal to pay Widowed Parent’s Allowance to Siobhan McLaughlin was incompatible with Article 14 of the European Convention on Human Rights together with the right to respect for family life under Article 8. The Supreme Court made a “declaration of incompatibility” – it is now for the Government and Parliament to decide whether and how legislation should be changed, in light of the Court’s judgment.
The judgment only concerned Widowed Parent’s Allowance. In her judgment, Lady Hale emphasised that it doesn’t necessarily follow from the judgment that the legislation providing for Bereavement Support Payment is also incompatible with the ECHR. She added (para 44):
Although we have been advised of its existence [i.e. BSP], 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. 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 [i.e. for Widowed Parent’s Allowance] will remain relevant for deaths taking place before March 2017 for a very long time.
How did the Government react?
The Parliamentary Under-Secretary of State for Work and Pensions, Justin Tomlinson, made the following statement to the House of Commons on 5 September:
With permission, Mr Speaker, I will make a statement on widowed parent’s allowance.
Widowed parent’s allowance is paid to families in receipt of child benefit where one parent’s husband, wife or civil partner died prior to 6 April 2017. It was replaced after that date by bereavement support payments, which are now paid by the Government to families who find themselves in the same unfortunate circumstances. New claimants have no eligibility for widowed parent’s allowance.
Last week the Supreme Court ruled that the primary legislation that governs widowed parent’s allowance is incompatible with the principles of European human rights law, as the benefit precludes any entitlement to widowed parent’s allowance for a surviving unmarried partner. We are in the very earliest stages of carefully considering the full implications of that ruling. Officials at the Department are working closely with their counterparts in Northern Ireland to examine the judgment and what our next steps should be.
However, as the House will be aware, only Parliament is able to change primary legislation. Lady Hale ruled:
“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.”
The Court’s ruling therefore does not change the current eligibility rules for receiving bereavement benefits.
I remind the House that the question of opening up bereavement benefits to cohabitees was debated and decided against in this place during the passage of the Pensions Act 2014, which introduced bereavement support payments, the successor to widowed parent’s allowance. It is worth noting that restricting bereavement payments to claimants who were in a legal union with the deceased has been a consistent feature of bereavement support in order to protect and clarify the entitlement. Other contributory benefits linked to national insurance contributions also contain special rules for claimants in a legal union.
A legal union gives the surviving spouse the right to claim state benefits derived from their deceased partner’s national insurance contributions. This principle provides a clear threshold for determining who can be provided for from a deceased person’s NI accumulation, and it serves to promote the institutions of marriage and civil partnership.
As I have stated, we are carefully considering the Court’s judgment and how the Department should proceed in light of it. When we have looked at all the options, I will come before the House to update Parliament further.
There has been no further statement from the Government on how it intends to proceed following the McLaughlin judgment.
How does the judgment affect other bereaved people?
The Childhood Bereavement Network and the Child Poverty Action Group – who were involved in the Supreme Court challenge – have published FAQs, How does the Supreme Court judgement on Siobhan McLaughlin’s case affect me? They include the following:
Does the judgement affect all unmarried couples with children?
The Supreme Court did warn that ‘It does not follow that the operation of the exclusion of all unmarried couples will always be incompatible’ (paragraph 43). In other words, there may be some circumstances – which differ from Siobhan’s – in which the Government is justified in refusing WPA to unmarried partners.
My partner died after 6 April 2017. Will I get payments?
This judgement does not cover the new Bereavement Support Payment (BSP). Eligible parents whose partner died after 6 April 2017 claim the new BSP rather than the old WPA and Bereavement Payment. The legislation governing the new BSP is separate, and was not considered by the Supreme Court. The judgement specifically said that it does not follow from this judgement that the new law governing BSP is incompatible in the same way as the old law governing WPA (paragraph 44).
We have to wait and see whether and how the Government decides to amend the new legislation governing BSP. We will be arguing strongly that the Supreme Court has established a principle that bereavement benefits should not disadvantage children because their parents chose not to marry (paragraph 42). We argue that the Government should recognise the way the wind is blowing, and extend eligibility to unmarried partners under the new law governing BSP.
If the Government does not do that, we expect that another parent will need to bring a test case about BSP like Siobhan did about WPA.
I don’t have children. Does the judgement affect me?
Siobhan’s case was specifically about Widowed Parent’s Allowance, and her children were a crucial aspect to the case. It is important to note that when she first brought her case to the High Court, the judged ruled that it was unlawful to deny her WPA (which requires there to be children in the household) but it was not unlawful to deny her Bereavement Payment (which does not require there to be children). It is unlikely that this case has implications for those without dependent children.
For further information see Carla Clarke, “Bereavement and children: unequal no more?”, Child Poverty Action Group Welfare Rights Bulletin, Issue 266 (October 2018).
What have others said?
The Work and Pensions Committee said that it would “take up the cudgels” to ensure the implementation of the Supreme Court’s ruling on bereavement benefits. It also asked whether the Government would now, in light of the Court’s ruling, consider changing the eligibility criteria for Bereavement Support Payment, in line with the Committee’s previous recommendations on this.
For further details see the Committee’s press release issued on 5 September 2018, Chair comments on “profound injustice” in benefits system; and Frank Field’s letter to Justin Tomlinson, Parliamentary Under Secretary of State for Family Support, Housing and Child Maintenance at the DWP.
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Debate on a Motion relating to the Work and Pensions Select Committee report on the DWP’s response to the Coronavirus Outbreak
A debate on 'the Work and Pensions Select Committee report on the DWP’s response to the Coronavirus Outbreak’ has been scheduled for Thursday 26 November 2020.