Entitlement to bereavement benefit

 In Probate

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Unmarried couple – entitlement to bereavement benefits

Re McLaughlin’s Application for Judicial Review [2018] UKSC 48

Case Summary from LawSkills | Private Client specialist trainersThis case is a significant case on how certain benefits should apply consistently to both married and unmarried couples when they are primarily directed to benefit their children. It is largely concerned with the compatibility of the UK legislation with the European Convention on Human Rights.

Widowed parent’s allowance was a contributory social security benefit payable to widowed people with dependent children – it has now been replaced (see below). It was non-means tested but taxable. The amount depended on the payment record of the deceased person. Until this case only married people were able to claim the allowance.

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Ms McLaughlin and her partner John Adams lived together for 23 years (although there were a couple of short periods of separation). They never married because Mr Adams had promised his first wife he would never remarry. They had four children together only one of whom was over 18 at the time of John’s death.

Had they been married Ms McLaughlin would have been entitled to both a bereavement payment and widowed parent’s allowance.

This appeal is from the Northern Ireland Court of Appeal and is founded on the incompatibility of the legislation with the European Convention on Human Rights (ECHR).

Lady Hale reviewed the history of the allowances in their social context and concluded that what began as a long-term replacement of a wife’s and children’s loss of a breadwinning husband’s income; moved to a long term replacement of a breadwinner’s income while children were growing up and is now transitional compensation for the immediate financial loss suffered by the survivor & children on bereavement.

Reference was made to Article 14 ECHR, which says:

“The enjoyment of the rights & freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

This raises four questions:

  • Do the circumstances ‘fall within the ambit’ of one or more of the Convention rights? i.e. Art 8 protection of family life
  • Has there been a difference of treatment between two persons who are in an analogous situation? i.e. marriage and cohabitation – no difference when it comes to bringing up children
  • Is that difference of treatment on the ground of one of the characteristics listed or ‘other status’? i.e. being unmarried
  • Is there an objective justification for that difference in treatment? This varies according to the circumstances – very weighty reasons would be needed to regard a difference in treatment based exclusively on sex

It was decided by a majority of four to one in the Supreme Court that the social security system does privilege marriage and civil partnership in a few ways – principally by permitting one partner to benefit from the contributions made by the other, not only for bereavement but also for retirement pension purposes.

However, is it a proportionate means of achieving the legitimate aim of privileging marriage to deny Ms McLaughlin and her children the benefit of Mr Adams’ contributions because they were not married to one another? No said the majority.

The responsibilities of both is towards their children which is why the allowance exists. Those responsibilities are the same whether parents are married or not.

From 6 April 2017 the system of bereavement payments, widowed parent’s allowance and bereavement allowance was replaced with the Bereavement Support Payment (BSP) for those who lose a partner. For more information see https://www.gov.uk/bereavement-support-payment

The new benefit focuses on the initial 12 month period of bereavement. Under BSP there will be a tax-free lump sum of £2,500 for those with no children or £3,500 for those with children.

This is followed by a monthly tax-free payment of £100 if there are no children and £350 if there are children – this lasts for 18 months and is paid regardless of age or if the survivor finds a new partner. It is not linked to inflation.

Conditions for BSP:

  • Deceased must have paid NI contributions for at least 25 weeks or
  • Deceased died because of an accident at work or from a disease caused by work; and
  • Deceased must have been under the State Pension Age on death & lived in the UK or a country that pays bereavement benefits

IPFD Webinar

13 November 2018 | 1pm-2pm

This Gill Steel webinar will detail recent IPFD cases and consider the basis on which claims are made and resolved

Read full course outline and sign up to attend this webinar

(Recordings available)

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