National Children's Bureau• Landmark High Court judgement that denying new-style bereavement benefits to unmarried, cohabiting partners with children is incompatible with human rights law
• Bereavement Support Payment is paid at a higher rate to those with children
• Frustration at Government’s lack of progress in responding to previous Supreme Court ruling on Widowed Parent’s Allowance
The High Court has today (7th Feb 2020) ruled that the eligibility criteria for Higher Rate Bereavement Support Payment (HRBSP) are incompatible with human rights law.
Payments are currently made to those whose husband, wife or civil partner died, but not to those who were living with but not married to their partner.
This means that each year, around 2,000 families with children lose out on payments worth almost £10,000.
Today’s ruling recognises that grieving children and their surviving parents are deserving of support, whether their parents were married or not.
The case was brought by Child Poverty Action Group on behalf of two families where the mother had died, leaving the fathers caring for their young children.
One of the fathers had been living with his partner for 14 years and they had three sons, now aged 13, 8 and 4. His partner died suddenly in October 2018. She had previously been working full time and paying National Insurance contributions. However, when the father made a claim for BSP, it was refused on the grounds that the couple had not been married.
The other father had been living with his partner for 10 years and together they had two daughters, now aged 9 and 7. His partner was diagnosed with breast cancer in December 2016 (having made a full recovery from an earlier diagnosis), and died in March 2018. The father made an application for BSP, which was refused on the grounds that he and his partner were not married. In both cases the couples were engaged and had intended to marry but financial and health issues meant that such intentions were never realised.
Many unmarried parents in the UK don’t realise the situation until it’s too late. More than a quarter of deaths are sudden and even when a parent is expected to die, they may be too ill to get married. Almost half (49%) of people cohabiting with a partner believe wrongly that living together for some time brings them the same legal rights as if they were married. This figure is even higher (55%) among people with children[1].
The whole system of bereavement benefits was overhauled in April 2017, with Bereavement Support Payment replacing a number of other bereavement benefits including the previous Widowed Parent’s Allowance.
The Supreme Court has previously ruled in August 2018 that denying Widowed Parent’s Allowance to unmarried mother-of-four Siobhan McLaughlin was incompatible with human rights law. However, the government has to date taken no action to amend the relevant legislation to bring it into compliance with human rights law nor has it taken any steps to review the equivalent marriage/civil partnership condition for Bereavement Support Payment. It was this inaction which resulted in the present case being brought.
Today’s ruling was keenly anticipated by those working with unmarried widowed parents and their children, as it tested whether the principle established in Ms McLaughlin’s case also applied to the new system of Bereavement Support Payment. The court found that it does.
Commenting on the case, Carla Clarke, solicitor for the Child Poverty Action Group, which represented the fathers, said:
“The two fathers in this case took legal action to protect not only their own grieving children but the estimated 2000 bereaved families who, each year, are excluded from bereavement support payments purely because the parents did not marry. The court’s finding is clear and strong - it recognises that the needs of grieving children are no less for the fact that their parents did not marry and confirms that restricting higher rate bereavement payments to spouses is unlawful and discriminates against children with unmarried parents.
We pay tribute to our clients who, in the midst of their grief, had the courage to pursue this case in order to ensure that no child is disadvantaged in bereavement because of their parents’ marital status.
In reaching its decision, the High Court agreed that our clients’ case is similar to the McLaughlin family’s case in 2018 when the Supreme Court found that the requirement to be a spouse or civil partner of the deceased parent in order to claim widowed parents allowance was incompatible with human rights law. That earlier ruling recognised that children’s needs are the same whether or not their parents were married and denying them additional financial support after the death of one parent is unlawful. Today’s judgement confirms that the principle established in that earlier ruling applies equally to families like our clients who claim bereavement support payments and have not married.
DWP argued that payment of bereavement support payment at a higher rate for those with children did not mean that it was intended to benefit the children and so the Supreme Court reasoning should not apply. Thankfully that suggestion was given short shrift by the High Court
In light of today’s judgment, the Government cannot justify any further inaction – it must act swiftly to ensure that the law on entitlement to both widowed parents allowance and the higher rate of bereavement support payment complies with human rights law. No more bereaved children should be denied state support on the basis of their parents’ marital status.”
Alison Penny, Director of the Childhood Bereavement Network, who provided a witness statement in support of the case and had previously intervened in the case of McLaughlin, said:
“We are delighted by today’s judgment. Parents make the same National Insurance contributions whether they are married or cohabiting. But at the moment, if one of them dies, their contributions only entitle their partner and children to bereavement support if the couple were married. Today’s ruling rights this injustice.
"We estimate that every year, over 2,000 families like those in this case face the double hit of one parent dying, and the other parent realising that they and the children aren’t eligible for bereavement benefits. And with cohabiting couples the fastest growing family type in the UK, the problem would only have got worse.
"Cohabiting parents have shared harrowing stories with us of the hardships they and their children have faced because they can’t claim Higher Rate Bereavement Support Payment. This money could provide a breathing space to help the family begin to adjust to life without their mum or dad, as well as paying for new expenses such as childcare or bereavement counselling. This ruling paves the way for all grieving children to be supported, whether their parents were married or not.
"We urge Parliament to amend the relevant legislation as quickly as possible, and to clarify the position for those parents who were previously deemed ineligible because of their marital status.
"Each day of delay, another four to five families will fall foul of this injustice.”
Today’s ruling is also a reminder that the government has still not addressed the human rights incompatibility of its eligibility criteria for the old Widowed Parent’s Allowance. 18 months on from the Supreme Court’s ruling in favour of Ms McLaughlin, it has still not said how it will right this wrong.
Alison Penny said:
“It is extraordinary that the Government is still dragging its feet in redressing this historic injustice, which continues to affect thousands of grieving children and their parents. Despite the Supreme Court’s ruling, recommendations from the House of Commons Work and Pensions Select Committee, reassurances from Ministers, and the efforts of many widowed parents and campaigners, families are still waiting to hear how they will be supported. Action is overdue and we urge the Government to act fast.”
[1] http://natcen.ac.uk/news-media/press-releases/2019/january/almost-half-of-us-mistakenly-believe-that-common-law-marriage-exists/