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In re McLaughlin

In re McLaughlin

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Case Copied 30 August 2018 60 min read

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[2018] UKSC 48

On appeal from: [2016] NICA 53

JUDGMENT

In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)

before

Lady Hale, President

Lord Mance
Lord Kerr
Lord Hodge
Lady Black

JUDGMENT GIVEN ON

30 August 2018

Heard on 30 April 2018

Appellant Respondent

Frank O’Donoghue QC

Tony McGleenan QC

Laura McMahon Donal Lunny BL
Laura Curran BL

(Instructed by Francis	(Instructed by
Hanna & Co Solicitors)	Departmental Solicitor’s

Office, Department of

Finance)
1st Intervener

(Child Poverty Action Group)

Helen Mountfield QC

Tom Royston

(Instructed by Herbert Smith

Freehills LLP)
2nd Intervener

(National Children’s Bureau)

Stephen Broach

(Instructed by Irwin Mitchell

LLP)

LADY HALE: (with whom Lord Mance, Lord Kerr and Lady Black agree)

Widowed parent’s allowance is a contributory social security benefit payable

to men and women who are widowed with dependent children. It is non-means- tested, so it is particularly valuable to parents who are in work, although it is taxable.

The widowed parent’s entitlement depends upon the contribution record of the

deceased partner. Currently, the widowed parent can only claim the allowance if he or she was married to, or the civil partner of, the deceased. The issue in this case is whether this requirement unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status, contrary to article 14 of the

European Convention on Human Rights (“ECHR”) when read with either article 8 of the Convention or Article 1 of the First Protocol to the Convention (“A1P1”).

The facts

2. Ms McLaughlin and her partner, John Adams, lived together (apart from two short periods of separation) for 23 years until he died on 28 January 2014. They did not marry because Mr Adams had promised his first wife that he would never remarry. They had four children, aged 19 years, 17 years, 13 years and 11 years when their father died. He had made sufficient National Insurance contributions for

Ms McLaughlin to be able to claim a bereavement payment and widowed parent’s

allowance had she been married to him.

Ms McLaughlin’s claims for both bereavement payment and widowed

parent’s allowance were refused by the Northern Ireland Department for

Communities. She applied for judicial review of that decision on the ground that the relevant legislation was incompatible with the ECHR. That claim succeeded in part before Treacy J in the High Court: In the matter of an application by Siobhan McLaughlin for Judicial Review: [2016] NIQB 11. He made a declaration of incompatibility under section 4(2) of the Human Rights Act 1998, that section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with article 8 of the ECHR in conjunction with article 14

“insofar as it restricts eligibility for Widowed Parent’s Allowance by reference to

the marital status of the applicant and the deceased”. He rejected the claim in relation

to the bereavement payment. The Court of Appeal unanimously held that the legislation was not incompatible with article 14,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] UKSC 48
Decision Date

CaseChat Overview and Summary

In the case of In re McLaughlin, Siobhan McLaughlin sought judicial review of a decision by the Northern Ireland Department for Communities to refuse her claims for bereavement payment and widowed parent's allowance following the death of her long-term partner, John Adams. The central issue before the court was whether the requirement that a claimant must have been married to or in a civil partnership with the deceased in order to be eligible for widowed parent's allowance unjustifiably discriminated against the claimant and her children on the basis of their marital or birth status, contrary to article 14 of the European Convention on Human Rights (ECHR) when read with either article 8 of the ECHR or article 1 of the First Protocol to the ECHR (A1P1).

The majority of the court, comprising Lady Hale, Lord Mance, Lord Kerr, and Lady Black, concluded that the legislation was incompatible with article 14 of the ECHR, read with both article 8 and A1P1. They found that the difference in treatment between married or civil partnered survivors and unmarried cohabiting survivors was not objectively justified. The court emphasised that the purpose of the widowed parent's allowance was to diminish the financial loss caused to families with children by the death of a parent, and this loss was the same whether or not the parents were married or in a civil partnership with one another.

On the other hand, Lord Hodge dissented, arguing that the widowed parent's allowance was not incompatible with article 14 of the ECHR, read with either article 8 or A1P1. He maintained that the cohabiting survivor was not in an analogous situation to the married or civil partnered survivor, and that the promotion of marriage and civil partnership was a legitimate aim that could justify the difference in treatment.

Ultimately, the appeal was allowed, and a declaration of incompatibility was made under section 4(2) of the Human Rights Act 1998, declaring that section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 was incompatible with article 14 of the ECHR, read with article 8, insofar as it precluded any entitlement to widowed parent's allowance by a surviving unmarried partner of the deceased.

Orders