Exclusion of families of people who could not…

The widower of a disabled person has successfully challenged the contributions requirements in the Pensions Act 2014 under Article 14 read together with article 1 of the first protocol (A1P1) to the European Convention on Human Rights (ECHR).

Mr Jwanczuk had been a devoted carer for his late wife, who was unable to work throughout her working life because of her severe, life-long disabilities. Following her death, he was in financial difficulties due to the loss of income as a carer, and the loss of employment and support allowance benefits received by his late wife.

The Pensions Act 2014 specifies minimum contributions as a condition for entitlement to bereavement support payments (“BSP”). However, this statutory contribution requirement is modest and was already excluded in cases of personal injury and disease at work.

It was argued on behalf of the Claimant that the requirement of minimum contributions under Pensions Act 2014 was incompatible with Article 14 (the right against discrimination) read together with A1P1 (the right not to be wrongly deprived of one’s possessions), which in this case was entitlement to BSP. The Court was invited to draw parallels with the Northern Ireland Court of Appeal’s decision in O’Donnell v. Department for Communities [2020] NICA 36, with respect to Pensions Act Northern Ireland 2015 (“PANI 2015”), where it was decided that to deny BSP to the surviving spouse violates article 14, read with article 8 and A1P1. In addition, Northern Ireland BSP Guidance considers ‘continuous entitlement to benefits due to disability’ as evidence of a deceased person’s inability to work throughout their entire life due to disability.

Mr Justice Kerr accepted that that the payment of BSP fell within the ambit of A1P1 and the effect of the contribution requirement in Pension Act 2014 was that the spouse of a disabled deceased spouse would not receive BSP. Mr Jwanczuk was considered to have “other status” for the purposes of Article 14 as the spouse of a deceased person who was severely disabled so that she was unable to work and therefore unable to pay class 1 or class 2 National Insurance Contributions, because a person with a lifelong disability could not make such payments. The Judge decided that, although the objectives of the Secretary of State were legitimate, the contribution requirements failed to distinguish between those who could not work due to life-long disability and those being able to work but choosing not to.

Although O’Donnell is not binding on the High Court and notwithstanding PANI 2015 being subordinate legislation, the Court made it clear that it is desirable that human rights obligations should be interpreted in a consistent way in England, Wales and Northern Ireland. The Judge reiterated that s.3 HRA interpretive exercise is required for both primary and subordinate legislation.

Jwanczuk can be viewed as a refreshing break from SC and the successive line of authorities which made it more difficult for successful challenges in areas of socio-economic decision making on Article 14 grounds (see for example R (CN) v Secretary of State for Health and Social Care [2022] EWCA Civ 86 and R (on the application of Crowter) v Secretary of State for Health and Social Care). The principle of comity between the courts of different jurisdictions of the United Kingdom as well as the desirability of uniform application of human rights throughout England and Wales and Northern Ireland seem to be the factors adding much weight to the challenge. Although the NICA decision in O’Donnell was not the subject of an appeal, Kerr J has granted the permission to appeal against its decision rendering the entitlement of spouses of disabled deceased persons to BSP uncertain. Thus, the compatibility between the strict approach in SC and the arguably more flexible approach in this case may be reviewed by the Court of Appeal.

Faryal Shafi is a public law researcher at Landmark Chambers.