Survivors Benefits for Unmarried Couples and their Children in the UK
Regional standards: Article 14 of the European Convention on Human Rights (ECHR) which secures the rights and freedoms of the ECHR without discrimination, read with the right to respect for family life under Article 8 and the protection of property rights in Article 1 of the First Protocol (A1P1).
National legislation: Section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, under which a widowed parent can only claim the child allowance if he or she was married to or the civil partner of the deceased.
The issue in this appeal was whether the section 39A requirement to be able to receive the widowed parent’s allowance (WPA) unjustifiably discriminated against the survivor and/or the children on the basis of their marital or birth status, contrary to Article 14 of the ECHR when read with either the right to respect for family life under Article 8, or the protection of property rights in Article 1 of the First Protocol.
Siobhan McLaughlin’s partner, John Adams, died on 28 January 2014. They were not married but had lived together for 23 years. They had four children, who were 19, 17, 13 and 11 years when Mr. Adams died. He had made sufficient contributions for Ms. McLaughlin to be able to claim the WPA, had she been married to him. Her claim after his death were refused by the Northern Ireland Department of Communities. She applied for judicial review of that decision on the ground that section 39A was incompatible with the ECHR and the High Court agreed, making a declaration that section 39A was incompatible with Article 14 read with Article 8 because it discriminated on the basis of marital status. The Court of Appeal, however, unanimously held that the legislation was not incompatible with Article 14, read with either Article 8 or the protection of property rights under A1P1. Ms. McLaughlin therefore appealed to the Supreme Court.
The Supreme Court clarified that (i) the denial of social security benefits falls within the ambit of A1P1 and that the WPA also falls within Article 8 as it is a positive measure by the State demonstrating its respect for family life; (ii) there had been a difference in treatment, because as the purpose of the WPA is to benefit the children, it made no difference to them whether or not the couple were married to one another, but their treatment was very different namely unmarried survivors did not qualify for the WPA; (iii) this difference of treatment was based on a relevant ground in the ECHR namely married status; and (iv) there was no objective justification for this different treatment between married and unmarried survivors. This last point in the reasoning is key. The ‘defence’ of objective justification depends on whether the measure in question pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the measure and the aim sought to be achieved. The Court reasoned that promotion of marriage and civil partnership is a legitimate aim, and the WPA is part of a (small) package of social security measures which privileges marriage and civil partnership. However, it was not a proportionate means of achieving this legitimate aim to deny Ms McLaughlin and her children the benefit of Mr Adams’ contributions because they were not married to each other.
The nub of the matter was that the 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 to or in a civil partnership with one another. 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 to or in a civil partnership with one another. The dissent, however, reasoned that the benefit applied to the adult survivor and its aim to support children of the couple was not relevant.
In August 2018 the Supreme Court by a majority of 4 to 1 (Lord Hodge dissenting) allowed the appeal declaring section 39A incompatible with ECHR’s Article 14 read with Article 8, because it precluded any entitlement to the WPA by a surviving unmarried partner of the deceased, and therefore was discriminatory on grounds of marital status.
The Relevance of the case
This case is relevant for its use of international labour standards, alongside the actual claim lodged for a declaration of the incompatibility of the national statutory provision with the regional binding text, namely the ECHR. First, the majority decision set out the national framework and its various reforms, noting the UK’s 1954 ratification of the main ILO standard C102 – Social Security (Minimum Standards) Convention, 1952 (No. 102). Article 60 provides that “The contingency covered shall include the loss of support suffered by the widow (sic) or child as the result of the death of the breadwinner”. This overview makes the point that none of the waves of social security reform – bereavement benefit or surviving parent allowance – gave consideration to extending the scheme to unmarried partners. The Supreme Court also used the UN Convention on the Rights of the Child (CRC), Article 3 of which states that in all actions concerning children the best interests of the child shall be a primary consideration. Moreover, it refers to CRC Article 26 which requires States parties to recognize for every child the right to social security benefit and Article 2 which requires States parties to respect and ensure the CRC rights without discrimination of any kind, irrespective of the child’s or the parent’s birth status. Referring also to Article 10 of the International Covenant on Economic Social and Cultural Rights (ICESCR), the Supreme Court makes the crucial statement, that denying children the benefit of social insurance simply because their parents were not married to one another is inconsistent with that obligation. The Court’s analysis is useful for the bigger picture of understanding the scope of such benefits: the widowed parent’s allowance is fundamentally aimed at securing the needs and well-being of the couple’s children, and therefore the added criterion in this national statute of having to have been married is irrelevant and contrary to the ECHR.
Practical Implications of Decision
CEDAW, CRC and the ICESCR forbid discrimination on the basis of marital status, and ILO standards relevant to the world of work have for decades required ratifying States to adopt and implement policies that apply decent work to female and male workers irrespective of their marital status. So it is an anomaly that while non-discrimination on the basis of marital status is a well-accepted concept globally, some national statutes still persist in differentiating on this basis when it comes to State social insurance benefits. The role of the regional human rights framework in this case is important, with the EU approach to equality delivering a fair and common sense outcome for the survivors in such situations. In the 21st century, with the United Nations instruments and frameworks, including Sustainable Development Goal 5, and regional frameworks such as the ECHR, there is an opportunity to ‘clean up’ outdated national statutory barriers to equality in benefits. Hence there is an immediate practical outcome that will improve the national statutory framework for families where one parent dies having made contributions to the national insurance system. The UK Court’s insistence on the aim of the benefit – to assist the couple’s children – also has the practical effect of releasing its application from any morality arguments: it is the best interests of the children that count when one of the parents has died having made National Insurance contributions for such a benefit. Therefore, another practical impact of this judgement is that the law in question is brought in line with modern legal thinking on the interplay of child rights and social protection rights. In addition, while not argued explicitly, the judgement has a potential marital status discrimination impact for surviving unmarried mothers, who otherwise would be facing unequal strains (compared to married mothers) to bring up the couple’s progeny. This outcome can only be viewed as good news. However, while the Supreme Court made a declaration of incompatibility under section 4(2) of the UK Human Rights Act 1998, it will be for the relevant legislature to decide whether or how the law itself should be changed subsequently.
Summary by Jane Aeberhard-Hodges, Senior Research Associate, UNRISD