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Call for Evidence

Proposal for a draft Bereavement Benefits (Remedial) Order 2021

Terms of reference: Proposal for a draft Bereavement Benefits (Remedial) Order 2021

Background

Widowed Parent’s Allowance (WPA) is a bereavement benefit payable to working age people[1] whose spouse or civil partner died before 6 April 2017 and who were entitled to Child Benefit for at least one child (or were pregnant).

Bereavement Support Payment (BSP) was introduced on 6 April 2017 to replace bereavement benefits including WPA. It is payable to working age people whose spouse or civil partner dies, with a higher rate payable to those with children.

Both of these benefits are, therefore, payable only to persons who were married to, or in a civil partnership with, the person who has died. Persons who were cohabiting with the deceased, and who had children with them, but were not in a legal union are not eligible.

Article 14 of the European Convention on Human Rights, as brought into domestic law by the Human Rights Act 1998, prohibits discrimination in the enjoyment of the other Convention rights.

In 2018 the Supreme Court found that the legislation governing WPA in Northern Ireland was incompatible with Article 14 ECHR because in providing a bereavement benefit to support children it discriminated without justification between the children of couples in a legal union and the children of those not in a legal union.[2] This benefit was found to fall within the ambit of both Article 8 ECHR (the right to respect for private and family life) and Article 1 of Protocol 1 ECHR (the right to peaceful enjoyment of possessions) and thus the discrimination affected the enjoyment of these rights. While the challenge related only to the Northern Ireland legislation, the conclusion applied equally to WPA across the UK.

In 2020 the High Court followed the reasoning of the Supreme Court and concluded that the legislation governing BSP was also incompatible with Article 14, read together with Article 8 and Article 1 of Protocol 1, insofar as it denied the benefit to surviving partners with children who had not been married to or in a civil partnership with the deceased.[3]

Both of these cases resulted in the courts making declarations of incompatibility under section 4 of the Human Rights Act 1998. A declaration of incompatibility does not change the law – it is for Government and Parliament to decide how to respond to that an incompatibility.

Government proposals

On 15 July 2021 the Government laid its proposal for The Bereavement Benefits (Remedial) Order 2021 before both Houses of Parliament.[4] The purpose of this proposal is to remedy the incompatibilities identified above by extending eligibility for WPA and BSP throughout the UK to surviving cohabiting partners with dependent children, who were not in a legal union with the deceased.

The Government proposes to do this by amending the legislation setting out those currently eligible for the benefits to include a “cohabiting partner”. This change would have retrospective effect to 30 August 2018 (the date of the Supreme Court judgment discussed above).

The proposed Order also includes a number of consequential amendments governing: time limits for making claims; how entitlement will be determined if more than one claimant has reason to claim; and transitional protection (for those who are already in receipt of WPA or BSP but whose entitlement may be superseded under the proposed legislative change).

Reporting on the draft proposal

The Joint Committee on Human Rights is required to report to Parliament on any Remedial Order made under the Human Rights Act.  The Committee has 60 days[5] to report to each House its recommendation as to whether a draft Order in the same terms as the proposal should be laid before the House.

Get involved

The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals. The deadline for submissions is [17 September 2021]. In particular, the Committee is interested to hear views on:

  • Does the proposed Remedial Order meet the procedural conditions for making a Remedial Order (are there compelling reasons to proceed by way of remedial order)?
  • Does the proposed Remedial Order address the legislative incompatibility with Article 14 ECHR identified in the Supreme Court case of McLaughlin and the High Court case of Jackson?
  • Would the legislation governing Widowed Parent’s Allowance and Bereavement Support Payment be compatible with Article 14 ECHR if the changes proposed in the Remedial Order were made?

Relevant links

The proposed draft Remedial Order can be found here. The draft Explanatory Memorandum can be found here.

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[1] i.e. persons who are under pensionable age

[2] In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 2018

[3] Jackson and others v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin)

[4] A Remedial Order is a form of subordinate legislation that amends or repeals primary legislation for purposes and in circumstances specified in the Human Rights Act 1998

[5] Not including any days when Parliament is dissolved or prorogued or any days when both Houses are adjourned for more than 4 days (HRA, Schedule 2, para 6)

This call for written evidence has now closed.

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