Francis Hanna represent mother in landmark Supreme Court bereavement benefits case

Laura Banks

22 December 2017

 

A County Antrim mother of four has been given permission by the Supreme Court to appeal a decision made by the Court of Appeal in 2016 relating to her entitlement to bereavement benefits. 

The case will be heard by the Supreme Court in April 2018, sitting in Belfast for the first time in history.  The Court will sit in the Inns of Court Library at the Royal Courts of Justice in Belfast, where Supreme Court President Lady Hale will be joined by Deputy President Lord Mance, Lord Kerr (former Lord Chief Justice of Northern Ireland), Lord Hodge and Lady Black for up to four days of hearings, commencing on Monday 30 April 2018, with Siobhan McLaughlin’s case, followed by another case, of Gareth Lee v Ashers.

Announcing the visit, Lady Hale said: "I am delighted that the Supreme Court will be sitting in Belfast in 2018. As the final court of appeal for the United Kingdom, we hear cases of profound importance to everyone in England, Wales, Scotland and Northern Ireland. My colleagues and I strongly believe that the experience of watching a case in person should not be limited to those within easy reach of London. This is the second time that the Court has sat outside London and doing so is becoming an established feature of the Court's calendar.

Lady Hale added: "Whilst in Belfast we shall hear two significant appeals from the Court of Appeal in Northern Ireland. "This will be a fantastic opportunity for local people to see the Court in action on their doorstep. The Supreme Court is committed to being one of the most open and accessible in the world and, like all our hearings, our Belfast cases will be live streamed via our website for everyone who cannot get to see us in person."

Siobhan McLaughlin lived with her partner John Adams for over 23 years until his death on 28th January 2014. Ms McLaughlin and Mr Adams were unmarried, and their four children were aged 19, 17, 13 and 11 years at the date of his death.

After Mr Adams’ death, Ms McLaughlin was devastated to discover that her children would lose out on tens of thousands of pounds in benefits, as the couple were not married. 

The family lost out on a £2,000 lump sum bereavement payment as well as a weekly payment of Widowed Parent’s Allowance, which could be up to £118.00 per week depending on the contributions made by the deceased, paid until the youngest child leaves school.

Ms McLaughlin felt this was particularly unfair given that throughout their lives, they had been treated as a couple by the Social Security Agency with marriage not being a relevant factor prior to his death, in respect of any other benefits.  Indeed, the restriction appears to breach the government’s own family test.

Ms McLaughlin took her case to the High Court in 2015, arguing that the refusal of the then DSD to pay her Widowed Parent’s Allowance discriminated against her on grounds of marital status and was therefore a breach of the Human Rights Act- in particular, Article 8 (the right to private and family life) and Articles 1 and 14.  Had they been married, the family would have been eligible to receive the benefits because her deceased partner had made sufficient contributions.

The DSD argued that restricting the benefits to spouses was justified on the grounds that it promoted the institution of marriage and civil partnership and helped maintain an efficient Social Security system.

Mr Justice Treacy ruled that denial of Widowed Parents Allowance to Ms McLaughlin was not justified because parents were under an obligation to maintain their children regardless of whether they were married, in a civil partnership or co-habiting.

In his judgment, he stated “The complete exclusion of the Applicant on the grounds of her marital status from a benefit whose purpose is to alleviate the financial burden on a family resulting from the death of a parent cannot be justified”

He added that it was somewhat strange for the authorities to argue that the restriction promoted marriage and civil partnership “when parents, whatever the status of their relationship, owe the same financial or legal duties towards their children. The restriction appears to be inimical to the interests of children.”

He held that the restriction violated Article 8 of the European Convention in so far as it “unjustifiably discriminates against the applicant on grounds of her marital status”.

Mr Justice Treacy refused Ms McLaughlin’s separate challenge to bereavement benefit for herself on the grounds that McLaughlin chose not to “opt in” and said it is within the State’s margin of appreciation to treat co-habiting couples differently to married and civil partners in the pursuit of the legitimate objective to promote the institutions of marriage and civil partnership.

The decision was subsequently overturned by the Court of Appeal in 2016 by Justices Weatherup, Gillen and Lord Chief Justice Morgan who held that Ms McLaughlin’s family could not be eligible for Widowed Parent’s Allowance.

The Court of Appeal also recognised that, unlike marital status, birth status is not a matter of a choice but reached a different conclusion than the High Court in finding that, whilst the benefit is child-related, it is not paid to the children and therefore the restriction does not discriminate against them.

Ms McLaughlin has now been given permission to appeal her case to the UK’s highest Court, the Supreme Court by Lords Kerr, Reid and Hughes.

The benefits have since been reformed to a less generous payment known as Bereavement Support Allowance, which is also unavailable to co-habiting partners, despite recommendations by the Social Security Advisory Committee to extend them.  

If Ms McLaughlin’s case is successful, the criteria for these benefits should be opened up to families of co-habiting parents throughout Northern Ireland and the UK. With more and more parents choosing to cohabit and an estimated 2,000 families per year being turned down for support on the basis of marital status, the judgment could be significant in alleviating hardship for bereaved families.

Ms McLaughlin was supported throughout her case in the lower courts by Citizens Advice and is represented by Laura Banks of Francis Hanna & Co Solicitors, with Counsel Laura McMahon BL and Frank O’Donaghue QC.

Laura Banks said “This case is extremely significant because it impacts not only Siobhan’s family but may others throughout Northern Ireland and the UK who have lost a parent. It is not fair nor we say is it lawful that Siobhan’s children, or indeed any child, should be turned down for support when they need it most, on the basis of the circumstances of their parents. Their loss is no different and they should not be forced into poverty at a time of bereavement. The case opens wider debate about our welfare system and how we support the most vulnerable in our society, particularly children. We are hopeful of a positive outcome in the Supreme Court next year which will bring about much needed reform.”