Landmark Supreme Court decision - A victory for thousands of bereaved children UK-wide

Laura Banks

30 August 2018

Siobhan McLaughlin has won her legal challenge in the UK Supreme Court on the entitlement of unmarried couples to Widowed Parent’s Allowance.

 

The Supreme Court released judgment in this matter today, Thursday 30th August 2018.

  • Previously, unmarried couples were precluded from receiving bereavement benefits and Widowed Parent’s Allowance under Section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.

  • The Supreme Court has now ruled that Widowed Parent’s Allowance "exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married or in a civil partnership with one another”.

  • The Supreme Court added that “the purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same whether or not the parents are married or in a civil partnership."

  • The Court has made a declaration that Section 39 (A) 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 of the deceased.

  • This landmark ruling is likely to affect thousands of bereaved families across the UK.

Background to case

Siobhan McLaughlin and her partner, John Adams lived together for 23 years, until John died in January 2014. They did not marry because John had promised his first wife, before she died, that he would not remarry. They had four children, who were aged 19, 17, 13 and 11 when their father died.

John had made sufficient national insurance contributions for Siobhan to qualify for bereavement benefits and Widowed Parent’s Allowance.  However, she was precluded from receiving these benefits due to the fact that the couple had not been married. Under Section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the benefits are restricted to those who were married or civil partnered to the deceased and cohabitees are excluded.

Widowed Parents Allowance, which could be up to £118 per week paid until the last child leaves school, was an extremely significant loss to Siobhan's family.

Legal challenge chronology

Siobhan felt strongly that she ought to challenge this on behalf of her children whom she felt deserved to be supported just as much as any bereaved child whose parents had been married.

Supported by Citizens Advice, MacMillan and her lawyers Laura Banks and Laura McMahon BL, she mounted a challenge to the High Court in Belfast on the ground that the law was incompatible with the European Convention on Human Rights.

Her claim succeeded and the High Court made a declaration of incompatibility under Section 4(2) of the Human Rights Act 1998, that the provision was incompatible with article 8 of ECHR in conjunction with article 14. The High Court held that, given that the purpose is to benefit children, the restriction was unjustifiable discrimination against children on grounds of their birth status.

The government appealed the decision to the Court of Appeal and was successful – the Court of Appeal held that the legislation was not incompatible and did not represent discrimination against children as the parent claimed the benefit.

Supreme Court decision

Undeterred, and with the support of Francis Hanna Solicitors, Siobhan then brought her case to the Supreme Court of the United Kingdom. In April 2018 Lady Hale, Lady Black, Lord Kerr, Lord Mance and Lord Hodge sat in Belfast for the first time in its history to hear the case.

The Justices have upheld Siobhan's appeal by a majority of 4-1.

The Child Poverty Action Group and Childhood Bereavement Network intervened in the case, highlighting that the restriction is out of step with societal changes and fails to comply with international human rights law including the United Nations Convention on the Rights of the Child.

In her lead judgment, Lady Hale agreed with the High Court that the situation for children whose parents were not married, is the same as that of children whose parents are married.  She found that Siobhan’s children would have been treated very differently if their parents had been married- their household would have significantly more to live on. She considered whether that different treatment could be justified, and concluded it could not.

The government argued that different treatment for married and unmarried couples under this legislation could be justified as it was designed to promote marriage; however the Court rejected this argument. Lady Hale acknowledged that the State accepts unmarried couples for the purposes of other benefits.

Lady Hale added: "This is not a difficult decision to reach on the facts of this case, where the couple lived together for many years, were recognised in doing so for other purposes by the Department for Communities and were parents of all the children involved. Their children should not be disadvantaged... This is unjustifiable discrimination in the enjoyment of a Convention Right is enough to ground a declaration of incompatability under Section 4(2) of the Human Rights Act."

Lady Hale, in concluding, allowed the appeal and made a declaration that Section 39 (A) 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 of the deceased.

Read the full Judgment on the UK Supreme Court website