Widowed parents’ allowance and non-married couples
Update: On 30 August, the Supreme Court handed down its judgment that denying bereavement benefits to unmarried, cohabiting partners with children is incompatible with human rights law.
Under current benefit legislation widowed parent’s allowance (WPA) is payable to the surviving spouse or civil partner of a deceased person in respect of their children, provided the deceased paid sufficient national insurance contributions. Where a couple were not lawfully married prior to the death of one of them, they do not qualify for WPA even though they may have been cohabiting for many years or been through a religious marriage ceremony which was not subsequently registered.
Re McLaughlin’s Application is a Northern Irish case, heard in the UK Supreme Court in April 2018, where the couple had been cohabiting for 23 years and had 4 children together. Ms McLauhglin challenged the lawfulness of the refusal to pay her WPA and was successful in the Northern Irish High Court. The judge considered that the refusal to pay WPA where a couple were cohabitees was not justified because the responsibilities for the children were the same irrespective of whether a couple had been married, in a civil partnership or co-habiting. Accordingly, the refusal to pay WPA constituted unlawful discrimination contrary to Article 14 ECHR read with Article 8 (right to respect for family life). The decision was overturned on appeal, with the Northern Irish Court of Appeal finding that the difference of treatment between spouses/civil partners and cohabitees was justified. Ms McLaughlin is now appealing to the UK’s highest court and CPAG has been granted permission to intervene to assist the Supreme Court in relation to legal arguments around children’s rights and the duty to give primary consideration to the best interests of the child. The Supreme Court hearing took place on 30 April 2018, with the Court sitting for the first time in Belfast.
Separately, CPAG is representing a Muslim woman with two young children who was also denied WPA following the sudden death of her partner with whom she had been through an Islamic marriage ceremony and, having been told by both the Iman celebrating the ceremony and the local registry office that she did not need to do anything further, believed herself to be lawfully married. Ms Rehman’s appeal was refused by the First tier Tribunal and permission to appeal was in turn refused by the Upper Tribunal. CPAG has filed a Cart style judicial review against this decision of the Upper Tribunal. In addition to the arguments being advanced in McLaughlin, Ms Rehman’s case raises issues of discrimination on the basis of religion.