It may seem somewhat Dickensian that an unmarried parent would be ineligible for davies_a_bw_indmemsocial benefits as a widow/er upon the death of their partner and co-parent, but that was the situation created by the legislation challenged in Re Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 (Lady Hale, Lord Mance, Lord Kerr, Lord Hodge and Lady Black). The issue under scrutiny was entitlement to widowed parent’s entitlement (WPA). WPA is a contributory social security benefit payable to parents of dependent children who are widowed; but, at the time of the claim, a widowed parent was only eligible for WPA if at the time of the death, s/he was married to, or the civil partner of, the deceased [para 1 of the judgment]. The appellant, who had four dependent children with her deceased partner, but had never married him, argued that this requirement discriminated against the survivor and/or the children on the basis of their marital or birth status, contrary to ECHR, art 14.  The Supreme Court allowed the appeal majority of 4 to 1 (Lord Hodge dissenting) and made a declaration that s 39A is incompatible with ECHR, art 14 read with art 8, insofar as it precludes any entitlement to WPA by a surviving unmarried partner of the deceased.

Lady Hale, giving the lead judgment, traced the development of the WPA, noting that what had begun in 1925 as a long-term replacement of a wife’s and children’s loss of a breadwinning husband’s income was now transitional compensation for the immediate financial loss suffered by the survivor and children on bereavement [para 12 of the judgment]. In none of the waves of reform had consideration been given to extending it to unmarried partners. As Lady Hale notes at paragraph 12:

“12. … In none of these waves of reform was consideration given to extending the scheme to unmarried partners. The Beveridge Report did briefly discuss “Unmarried person living as a Wife”, pointing out that treatment of the problem was complicated by the possibility that either or both parties might have a legal spouse. It recommended that “Widow’s and guardian benefits should not be paid except to a woman who was the legal wife of the dead man. Retirement pension should not be paid in respect of contributions other than the woman’s own contributions, except to the legal wife of the retired man” (para 348(ii)). That principle has not been officially questioned since. The most recent government publication, on Bereavement Benefit for the 21st Century (above), simply reports that some consultation respondents took the opportunity to raise wider issues outside the scope of the consultation, including the extension of bereavement benefit entitlement to cohabitees (p 15).

The first question the Court had to resolve was whether the WPA fell within the ambit of art 8 at all for the purposes of discrimination under art 14.  It was common ground that it fell within the ambit of the protection of property under ECHR, A1P1; but this right is (arguably) more weakly protected by the Convention, and the children themselves did not have property rights, whereas there was arguable discrimination against them in the enjoyment of their family life in comparison with children of a bereaved parent who had been married to the co-parent at the time of the co-parent’s death. After noting that English Courts had previously made rather “heavy weather” of the ambit point due to its broad and ill defined scope, Lady Hale held that WPA did fall within the ambit of art 8, because although the provision of a WPA was not required by art 8, it was a modality of the exercise of the rights guaranteed by art 8:

22…Widowed parent’s allowance is a positive measure which, though not required by article 8, is a modality of the exercise of the rights guaranteed by article 8. It has a more than tenuous connection with the core values protected by article 8: securing the life of children within their families is among the principal values contained in respect for family life. There is no need for any adverse impact other than the denial of the benefit in question.

The next issue to be considered was whether there was a difference between two persons in an analogous situation, Lady Hale held (distinguishing Shackell v United Kingdom (App No. 4581/99) in which the ECtHR had declared inadmissible a complaint that denying widow’s benefits to unmarried surviving partners discriminated against the survivor and her children on the ground of her unmarried status) that an unmarried widowed parent with children was in an analogous position to that of a married widowed parent with children.   The relevant facet of the relationship in this context was not their public commitment, but the co-raising of children. In a situation where the payment related specifically to the raising of children, marriage and cohabitation were analogous [para 26 of the judgment]. Any difference in treatment was not justified because the allowance existed because of the responsibilities of the deceased and the survivor towards their children. Their responsibilities were the same whether or not they are married to or in a civil partnership with one another [para 39 of the judgment]. Furthermore, denying children the benefit of social insurance simply because their parents were not married to one another was inconsistent with international obligations regarding the welfare of children.

Lord Mance, agreeing with the result did not distinguish Shackell but held that it should be regarded as wrong, because it failed to address the clear purpose for widowed mother’s allowance, the interests of any relevant child [para 49 of the judgment]. Lord Hodge, giving the dissenting judgment, was less comfortable with departing from the reasoning of the ECtHR in Shackell. His primary reason for dismissing the appeal was that the primary benefit of the WPA (when the legislative provisions were examined in detail) was to the survivor, rather than any children, which led him to conclude that the raising of children was not the relevant facet of the relationship when it came to the WPA. Therefore Shackell applied and an unmarried widowed parent was not in an analogous position to a married widowed parent [para 79 of the judgment]. He would also have held that there was no disproportionality in treating a cohabitee survivor differently from a surviving spouse or partner; that WPA fell within the ambit of A1P1 but within art 8 only indirectly by giving the survivor a pension, and that WPA was a benefit granted to a survivor, not being directed at children [para 86 of the judgment].

The case is a good example of the ‘dialogue’ between the domestic court and Strasbourg, with Lady Hale seeking to distinguish the case from Shackell with Lord Mance adopting a more robust approach that Shackell was wrong or at least should not be followed domestically, a judgment he perhaps felt more comfortable making as Shackell is a case concerning the United Kingdom. The judgment also provides a useful discussion of the thorny question of whether an issue falls within the “ambit” of a right for the purposes of art 14. The concept is still rather wooly, but the approach remains that of Lord Bingham in M v Secretary of States for Work and Pensions [2006] 2 AC 91, encapsulated by Lady Hale as “the closer the facts come to the protection of the core values of the substantive article, the more likely it is that they fall within its ambit.” Arguably that just shifts the argument to what the core values provided by each right are, but it does provided a useful starting point, and as Lady Hale went on to note It may turn out that this is too restrictive a test: for example, “core values” is a concept derived from the domestic rather than the Strasbourg jurisprudence”, suggesting that in future what will be deemed to fall within the “ambit of a right” will widen rather than narrow.