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Kenya Law / Blog / Case Summary: Preclusion from any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased by section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act, 1992 was discriminatory and thus incompatible with article 14 of the ECHR, read with article 8

Preclusion from any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased by section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act, 1992 was discriminatory and thus incompatible with article 14 of the ECHR, read with article 8

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

The Supreme Court of the United Kingdom

[2018] UKSC 48

Lady Hale,P; Lord Mance, Lord Kerr, Lord Hodge, Lady Black

August 30, 2018

Reported by Linda Awuor & Wanjiru Njihia

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International Law-law of Conventions- European Convention on Human Rights -fundamental rights-right to non-discrimination-unmarried cohabitee vis-à-vis married surviving spouse- payment of widow’s allowance-whether 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- European Convention on Human Rights, articles 8, 14

International Law-law of Conventions- Protocol 1 to the European Convention on Human Rights -economic and social rights-right to peaceful enjoyment of property- contributory social security-payment of widow’s allowance-denial of-whether the denial of a contributory social security benefit fell within the ambit of the protection of property in A1P1 in relation to the denial of widow’s payment and widowed mother’s allowance to survivors-Protocol 1 to the European Convention on Human Rights, Article 1 of the Protocol

Family Law-cohabitation-contributory social benefit-payment of widow’s allowance-unmarried cohabitee vis-à-vis married surviving spouse-where the surviving spouse was an unmarried cohabitee-whether an unmarried bereaved cohabitee was in an analogous situation to a bereaved survivor who had been married to or in a civil partnership with the deceased in relation to payment of widow’s allowance- Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 39A

Family Law-social security contributions and benefits-survivors-payment of widow’s allowance-what were the circumstances that made widow’s payment allowance payable- Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 39A

Brief facts:

Widowed parent’s allowance (WPA) was a contributory, non-means-tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. Under section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (the Act) the widowed parent could only claim the allowance if he or she was married to or the civil partner of the deceased. The issue in the instant appeal was whether that requirement unjustifiably discriminated 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 the right to respect for family life under article 8, or the protection of property rights in Article 1 of the First Protocol (A1P1).

The appellant’s partner, John Adams, died on January 28, 2014. They were not married but had lived together for 23 years. They had four children, aged 19, 17, 13 and 11 years when their father died. He had made sufficient contributions for the appellant to be able to claim WPA, had she been married to him. Her claims were refused by the Northern Ireland Department of Communities. She applied for judicial review of that decision on the ground that section 39A of the Act was incompatible with the ECHR. The High Court agreed and made a declaration that section 39A was incompatible with article 14 read with article 8. The Court of Appeal, however, unanimously held that the legislation was not incompatible with article 14, read with either article 8 or A1P1. She therefore appealed to the Supreme Court.

Issues:

i. Whether 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.

ii. Whether the denial of a contributory social security benefit fell within the ambit of the protection of property in A1P1 in relation to the denial of a survivor’s payment.

iii. Whether an unmarried bereaved cohabitee was in an analogous situation to a bereaved survivor who had been married to or in a civil partnership with the deceased.

iv. Whether there had been an objective justification for the difference in treatment between the two persons who were in an analogous situation.

v. What were the circumstances that made widow’s payment allowance payable?

Relevant Provisions of the Law

Social Security Contributions and Benefits (Northern Ireland) Act, 1992

Section 39A- Widowed parent’s allowance

(1)This section applies where—

(a) a person whose spouse dies on or after the appointed day is under pensionable age at the time of the spouse’s death, or

(b) a man whose wife died before the appointed day—

(i) has not remarried before that day, and

(ii) is under pensionable age on that day.

(2)The surviving spouse shall be entitled to a widowed parent’s allowance at the rate determined in accordance with section 39C below if the deceased spouse satisfied the contribution conditions for a widowed parent’s allowance specified in Schedule 3, Part I, paragraph 5 and—

(a) the surviving spouse is entitled to child benefit in respect of a child falling within subsection (3) below; or

(b) the surviving spouse is a woman who either—

(i) is pregnant by her late husband, or

(ii) if she and he were residing together immediately before the time of his death, is pregnant in circumstances falling within section 37(1)(c) above.

(3)A child falls within this subsection if one of the conditions specified in section 81(2) below is for the time being satisfied with respect to the child and the child is either—

(a) a son or daughter of the surviving spouse and the deceased spouse; or

(b)a child in respect of whom the deceased spouse was immediately before his or her death entitled to child benefit; or

(c) if the surviving spouse and the deceased spouse were residing together immediately before his or her death, a child in respect of whom the surviving spouse was then entitled to child benefit.

(4)The surviving spouse shall not be entitled to the allowance for any period after she or he remarries, but, subject to that, the surviving spouse shall continue to be entitled to it for any period throughout which she or he—

(a) satisfies the requirements of subsection (2)(a) or (b) above; and

(b) is under pensionable age.

(5)A widowed parent’s allowance shall not be payable—

(a)for any period falling before the day on which the surviving spouse’s entitlement is to be regarded as commencing by virtue of section 5(1)(l) of the Administration Act; or

(b) for any period during which the surviving spouse and a person of the opposite sex to whom she or he is not married are living together as husband and wife.]

European Convention on Human Rights, 1950

Article 8-Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14-Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Protocol 1 to the European Convention on Human Rights

Article 1 of the Protocol-Right to peaceful enjoyment of property

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Held:

  1. The Court needed only consider section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (the Act), in the version in force when the deceased died: Widowed parent’s allowance. Article 14 of ECHR (article 14) on non-discrimination did not presuppose that there had been a breach of one of the substantive Convention rights, for otherwise it would have added nothing to their protection. It was clear that the denial of a contributory social security benefit fell within the ambit of the protection of property in Article 1 of the First Protocol to the European Convention on Human Rights (A1P1).
  2. The allowance paid by the state was intended to promote family life and necessarily affected the way in which the latter was organised as, in conjunction with parental leave; it enabled one of the parents to stay at home to look after the children. By granting such an allowance states were able to demonstrate their respect for family life within the meaning of article 8 of ECHR on right to respect for family life. Thus article 14 of ECHR was applicable.
  3. Widowed parent’s allowance was only payable if there were children or young people for whose care and support either the deceased or the survivor or both were responsible: it was conditional on the survivor receiving child benefit and thus being a primary carer for such a child. It was one of the ways in which the state evinced respect for children and the life of the family of which they were part. Indeed, it was a stronger case than child support, which was simply a mechanism for enforcing the parent’s obligation to maintain one’s children.
  4. It was always necessary to look at the question of comparability in the context of the measure in question and its purpose, in order to ask whether there was such an obvious difference between the two persons that they were not in an analogous situation. The factors linking the claim to article 8 on right to respect for family life were also relevant to the question. It was for that reason that the Judicial Review Court was able to distinguish between the Appellant’s claim for the bereavement payment and her claim for widowed parent’s allowance. In the case of the former, it held that the lack of a public contract between the Appellant and the deceased meant that her situation was not comparable with that of a widow and her claim had to fail. That decision had not been appealed. In the case of the latter, the Court held that the relevant facet of the relationship was not their public commitment but the co-raising of children. For that purpose, marriage and cohabitation were analogous.
  5. That analysis was correct as widowed parent’s allowance was only paid because the survivor was responsible for the care of children who were at the date of death the responsibility of one or both of them. Its purpose had to be to benefit the children. The situation of the children was thus an essential part of the comparison and that situation was the same whether or not the couple was married to one another. It made no difference to the children. But had the couple been married, their treatment would be very different: their household would have significantly more to live on while their carer was in work.
  6. Shackell v United Kingdom(Shackell) could not be regarded as conclusively against the conclusion that for the purpose the situations were analogous. Unlike in the Judicial Review Court, the court in Shackell did not examine the purpose of each benefit separately and ask whether they should be distinguished when it came to the justification for excluding unmarried parents and their children. It was also worth noting that in Sahin v Germany, the Grand Chamber concluded that, because children of married and unmarried parents should not be treated differently, neither should the unmarried parents – in that case an unmarried father for the purpose of contact with his children. It was also instructive that in Yiğit v Turkey (Yigit) where the Grand Chamber was faced with a difference in treatment for the purpose of survivors’ benefits between people who had only religious marriages and people who had civil marriages. The court began its discussion by pointing out that according to the court’s settled case law, discrimination meant treating differently, without an objective and reasonable justification, persons in relevantly similar situations. It noted the Government’s argument that civil and religious marriages were not similar for that purpose. But it did not answer the question directly. Rather, it considered whether a religious marriage was a status within the meaning of article 14 of ECHR on non-discrimination and concluded that it was. It then went straight on to consider whether the difference in treatment was justified, thus implying that the situations were relevantly similar, and held that it was.
  7. It was well established both in Strasbourg and domestically that not being married could be a status just as being married could be. In Yiğit, the Grand Chamber held that the absence of a marriage tie between two parents was one of the aspects of personal status which would be a source of discrimination prohibited by article 14 of ECHR. Inre G (Adoption: Unmarried Couple), the House of Lords held that being unmarried was a status for the purpose of deciding whether their inability to adopt was unjustified discrimination under article 14of ECHR. It followed, therefore, that the situation in the case before the instant Court was sufficiently comparable to that of a widow or widower with children for the difference in treatment based on the lack of a marriage tie to require justification. That in turn depended upon whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realized.
  8. The difference in treatment was argued to be based, or largely based, on the birth status of the children, which was a suspect ground, requiring particularly careful scrutiny. Thus, it was argued, the marriage condition had the effect that all, or almost all, the children adversely affected were illegitimate- i.e. born to parents who were not married to each other – and all, or almost all, the children positively affected would be legitimate- i.e. born to parents who were married to one another. In fact, that would be so in a situation like the instant case, when the parents cohabited for a long period and all the children who fell within section 39A (3) were the children of both the deceased and the survivor. It would very well not be so in other situations, where there were children of either the deceased or the survivor from other relationships, marital or non-marital. It was therefore only the situation covered by section 39A (3) (a) which deserved particularly careful scrutiny.
  9. The mere existence of a legitimate aim was not enough: there had to be a rational connection between the aim pursued and the means employed. The measure had to pursue a legitimate aim. Whether there was a rational connection between the aim in the case before the instant Court and the measure in question was more debatable. It seemed doubtful in the extreme that any couple was prompted to marry – save perhaps when death was very near – by the prospect of bereavement benefits. But they were part of a (small) package of social security measures in which it payed to be married rather than to cohabit. The appellant, like many cohabitants, complained that the social security system was happy to recognise their relationship for some purposes but not for the one before the instant Court. The Court had not gone into the detail of that. But the general picture was that unmarried cohabitants were treated as a couple for the purpose of means-tested benefits: they would get the benefits applicable to a couple rather than the benefits applicable to two single people. That would sometimes be to their advantage: the benefit cap was higher for couples and lone parents than it was for single adult households. But it was often to their disadvantage, as the system assumed that two could live together more cheaply than could two single households.
  10. The fact remained that the social security system did privilege marriage and civil partnership in a few ways: principally by permitting one partner to benefit from the contributions made by the other, not only for bereavement but also for retirement pension purposes. That was the nub of the matter. Where means-tested benefits were concerned, it was difficult indeed to see the justification for denying people and their children benefits, or paying them a lower rate of benefit, simply because the adults were not married to one another. Their needs, and more importantly their children’s needs, were the same. But the instant Court was concerned with a non-means-tested benefit earned by way of the deceased’s contributions. And the allowance was a valuable addition to the household income if the survivor was in work. It was not a proportionate means of achieving the legitimate aim of privileging marriage to deny the appellant and her children the benefit of the deceased’s contributions because they were not married to one another.
  11. The allowance existed because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities were the same whether or not they were married to or in a civil partnership with one another. The purpose of the allowance was to diminish the financial loss caused to families with children by the death of a parent. That loss was the same whether or not the parents were married to or in a civil partnership with one another. That view was reinforced by the international obligations to which the United Kingdom was party and which informed the interpretation of the guarantees contained in the ECHR even though they had not been directly incorporated into United Kingdom law.
  12. Principal amongst the articles was article 3 of the United Nations Convention on the Rights of the Child, 1989 (UNCRC), which stated that in all actions concerning children the best interests of the child shall be a primary consideration. Given the direct link with children, there could not be much doubt that the provision of widowed parent’s allowance was an action concerning children. Article 26 required state parties to recognise for every child the right to benefit from social security, including social insurance. Article 2 of the UNCRC required state parties to respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s birth or other status. To like effect was article 10 of the International Covenant on Economic Social and Cultural Rights, 1966. Denying children the benefit of social insurance simply because their parents were not married to one another was inconsistent with that obligation.
  13. It was also noteworthy that the great majority of member states of the Council of Europe provided survivor’s pensions directly to the children irrespective of birth status and in every other member state for which evidence was available, apart from Malta, where a pension was not paid directly to the child a pension could be paid to the surviving parent whether or not they were married to the deceased parent. That was evidence of a European consensus which was always relevant to the width of the margin of appreciation which Strasbourg would allow. That was not a difficult conclusion to reach on the facts of the case before the instant Court, where the couple lived together for many years, were recognised as doing so for other purposes by the Department for Communities and were parents of all the children involved. Their children should not suffer that disadvantage because their parents chose not to marry – as it happened for a commendable reason, but it might not always be so. That unjustified discrimination in the enjoyment of a Convention right was enough to ground a declaration of incompatibility under section 4(2) of the Human Rights Act on declaration of incompatibility.
  14. It did not follow that the operation of the exclusion of all unmarried couples would always be incompatible. It was not easy to imagine all the possible permutations of parentage which might result in an entitlement to widowed parent’s allowance. The recent introduction into the household of a child for whom only the surviving spouse was responsible was one example. Whether it would be disproportionate to deny that child the benefit of the deceased’s contributions would be a fact specific question. But the test was not that the legislation had to operate incompatibly in all or even nearly all cases. It was enough that it would inevitably operate incompatibly in a legally significant number of cases.
  15. A declaration of incompatibility did not change the law: it was then for the relevant legislature to decide whether or how it should be changed. It also did not follow that the new law was incompatible. Although the instant Court had been advised of its existence, it had not heard argument about it, and the argument would no doubt be very different from the argument it had heard in the instant case. But it did not see the fact that the law had now changed as a reason for not making a declaration of incompatibility: the old law would remain relevant for deaths taking place before March 2017 for a very long time. Lord Mance concurring: (with whom Lady Hale, Lord Kerr and Lady Black agree)
  16. The main purpose of widowed parent allowance was to secure the continuing well-being of any child of a survivor, there seemed in that context to be no tenable distinction, and indeed manifest incongruity in the difference in treatment, between a child of a couple who were married or civil partners and the child of a couple who were not. In a large number of cases the effect would also be to discriminate against a child who was illegitimate. Indirect discrimination did not depend on the reason for or purpose of the conduct complained of, but on its effect. And legitimacy or illegitimacy was a status; the Instant Court needed not consider other situations on the instant appeal.
  17. A policy in favour of marriage or civil partnership would constitute justification for differential treatment, when children were not involved. But it could not do so in relation to a benefit targeted at the needs and well-being of children. The fact that the widowed parent’s allowance would cease or be suspended in some situations was no answer to that. The underlying thinking was no doubt that adequate support would be or was likely to be derived from another source in such situations. The provisions for cessation or suspension would not be entirely logical or reflect entirely accurately the circumstances in which adequate alternative support would be expected. But, if so, that did not appear to the instant Court to affect the analysis that widowed parent’s allowance was fundamentally aimed at securing the needs and well-being of children.
  18. It was not always easy to judge how different benefits interacted and how easy they would be to administer. But the position of couples who were neither married nor civil partners was already catered for in other situations known to the law. The starting point was surely that, where children were for relevant purposes in a similar situation, the law would be expected to deal with them in the same way. The Instant Court was not persuaded that any substantial grounds existed for thinking that that was not and was not feasible, as well as just, in the present context.

Lord Hodge: dissenting

  1. The European Court on Human Rights (ECtHR) treatment of marriage and civil partnership as conferring a status which distinguished them from cohabitation, while not binding on the instant Court, was a very important component of any analysis of a challenge under article 14 of ECHR taken together with article 8of ECHR. It was necessary to consider first whether the present case fell within the ambit of article 8 of ECHR.
  2. It had long been established in the jurisprudence of the ECtHR that article 14of ECHR, which sought to secure without discrimination the enjoyment of the rights and freedoms contained in the substantive provisions of the ECHR and its protocols, did not require any breach of those substantive provisions. It was sufficient for article 14 of ECHR to apply that the facts of the case fell within the ambit of one or more of those substantive provisions. While article 8of ECHR did not require the state to provide financial support to a family in the form of state benefits, such support as the state chose to provide had to be provided without discrimination. For the ECtHR had held that family life in article 8 included not only dimensions of a purely social, moral or cultural nature but also encompassed material interests. Thus, provision of child benefits to the parents of a child had been characterised as a way by which states were able to demonstrate their respect for family life.
  3. Article 8 conferred a right that the state would show respect for private and family life. The provision of financial support was one of the modalities of the exercise of a right guaranteed. Modality as a particular mode in which something was done or expressed; in relation to article 8 of ECHR, it was a way in which the state expressed its support for family life. Article 8 of ECHR did not require a state to grant a parental leave allowance. But if a state chose to grant a parental leave allowance it thereby demonstrated its respect for family life. The allowance was intended to promote family life. The allowance came within the scope of article 8 of ECHR, and article 14 read with article 8 of ECHR was engaged.
  4. The instant Court saw no basis for the assertion that A1P1 was a lex specialis which excluded consideration of article 8 of ECHR. When the ECtHR had decided cases under article 14 taken with A1P1 and found it unnecessary to consider a claim relating to the same facts under article 14 taken with article 8, it had not suggested that A1P1 had excluded consideration of article 8. When the ECtHR had dismissed a challenge under article 14 taken with A1P1 and had then declined to consider article 14 taken with article 8 (as it did in Shackell), one would readily infer that the ECtHR did not see a different result arising from the latter assessment. Indeed, it was questionable whether one could avoid such an inference. But there was no justification for inferring more than that.
  5. A1P1 was a more natural home for social security benefits such as the WPA than article 8 because it was a benefit which was directed to assist the bereaved widow/widower or civil partner who had lost the financial support of the deceased. But it was payable if and only if the survivor had responsibility for children and it thereby could be seen as a means, albeit indirectly, by which the state showed respect for family life. The WPA fell within the ambit of article 8. It was the positive act of providing the WPA, which provided assistance to the survivor who was responsible for children and thereby promoted family life that brought the benefit within the ambit of article 8.
  6. Not being married could be a status. Different treatment in the field of state benefits based on a person not being married would not however be a suspect ground which required the court to exercise closer scrutiny.
  7. The 1st question was whether an unmarried bereaved cohabitee was in an analogous situation to a bereaved survivor who had been married to or in a civil partnership with the deceased. The appellant was not.
  8. The majority suggested that they were in an analogous situation because the relevant facet of the relationship between the deceased and the survivor was the co-raising of children. It was stated that the WPA was payable only if the survivor was responsible for the care of children who were at the date of death the responsibility of one or both of them. That statement was correct. But it did not follow, as the majority asserted, that the purpose of the WPA was to benefit the children. There were a number of important characteristics of the WPA which showed that it was a benefit to assist the bereaved survivor rather than a benefit for bereaved children, although the instant Court recognised that it would benefit the children by providing additional income to the family unit.
  9. First, the WPA was a benefit which replaced the lost income of the deceased and thereby gave the survivor the opportunity not to work or to work for reduced hours while she was responsible for children. Unlike benefits which were paid to meet a specific need of the claimant, the WPA, as an income replacing benefit, was taxable as pensions income in the hands of the survivor. Secondly, the WPA ceased to be payable while the survivor remained responsible for relevant children in several circumstances which were the personal circumstances of the survivor. If she reached retirement age, if she remarried or entered into a civil partnership, so long as she cohabited with a partner of either gender, or if she died, the WPA ceased to be payable.
  10. The WPA ceased to be paid as soon as the survivor entered into one of the specified relationships, regardless of whether the survivor’s new partner undertook any responsibility for the children. If the WPA were properly characterised as a benefit for the bereaved children, it might be difficult to defend the rationality of those rules. Thirdly, the WPA was a contributory benefit. In most circumstances it was payable only if the deceased had made sufficient National Insurance contributions. The survivor’s benefits, which were treated in UK tax law as a pension, were the product of the deceased’s contributions. Thus the nature of the nexus between the deceased and the survivor took on a particular importance. Fourthly, the sums payable to the survivor were not related to the children’s needs or increased by reference to the number of children for whom she was responsible. Instead, the rate of the WPA was calculated in a way similar to that of a Category A retirement pension. The survivor received a basic pension at a weekly rate and an additional pension calculated by reference to a surplus created by the deceased’s earnings or deemed earnings during his working life.
  11. It was unsurprising that the rules governing the WPA focused on the nature of the relationship between the deceased and the survivor in determining the survivor’s entitlement to that contributory pension. When one payed due regard to those characteristics of the WPA, the reasoning of the ECtHR in Shackell, which recognised the importance of the status of the survivor, was directly relevant and strongly supported the conclusion that the cohabiting survivor was not analogous to the survivor who was married to or in a civil partnership with the deceased.
  12. On a strict analysis the question whether discrimination was objectively justified did not need to be addressed if one concluded that the persons were not in an analogous situation. Nonetheless, it was appropriate to address that question. In so doing, the instant Court observed that considerations which pointed against the persons being in an analogous situation also had a bearing on the justification of their being treated differently by the state.
  13. It was usual, when addressing justification, to ask whether the difference in treatment pursued a legitimate aim and whether, in relation to the difference in treatment, there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The contracting states were given a certain margin of appreciation in their assessment of whether differences in otherwise similar situations justified a different treatment in law.
  14. In the field of social security benefits, entitlement to a survivor’s retirement pension and entitlement to the WPA depended on the existence of a marriage or a civil partnership. There was thus a range of rules which conferred financial benefits on persons who were or were married or in a civil partnership. In that context, it was of no real significance that the average informed citizen would not have been aware of the WPA when entering into the legal obligations which marriage or civil partnership entailed. Such a person was likely to have been aware that there were fiscal and other benefits to such relationships even if unaware of their details. The instant Court was unpersuaded that any ignorance of the WPA called into question the rational connection between the measure in question and the undisputed legitimate aim or the proportionality of the difference of treatment.
  15. In considering the circumstances, the subject matter and background, the matters which the Court had discussed demonstrated that the target of the contributory benefit, which was the WPA, was the survivor, if she had responsibility for children, and if she had not obtained access to an alternative source of income by marriage, civil partnership or cohabitation, or by means of a retirement pension. The children benefited only indirectly from the WPA which would terminate while the survivor remained responsible for them.
  16. The WPA was the survivor’s benefit. It was of note that the ECtHR rejected an argument in Shackell in which the applicant had argued that her lack of an entitlement to the WPA discriminated against children because of their illegitimate status. While there would be good policy reasons for a benefit which was directed at bereaved children, that was not the nature of the WPA. Such questions of social and economic policy fell within the remit of the democratically elected legislature and were beyond the remit of the courts. The references to the international obligations of the United Kingdom in relation to children lost their force when attention was paid to the characteristics of the WPA.
  17. There was no disproportionality in treating a cohabitee survivor differently from a surviving spouse or civil partner. The WPA fell clearly within the ambit of A1P1. It fell within the ambit of article 8 only indirectly: by giving the survivor a pension, to which the deceased and not she had contributed, it enabled her not to work or to work fewer hours than she might otherwise have to. The WPA should not be equated with means-tested benefits which were directed to people’s needs and were not entitlements resulting from contributions. It did not address hardship. If the survivor was in work, the WPA gave her additional income, albeit subject to taxation. If she was in receipt of means-tested benefits, the payment of the WPA provided only limited extra income.
  18. The provision of the WPA should be seen in the wider context of the United Kingdom social security system which gave benefits, which, unlike the WPA, were directed at children. Should the children be in need, there were benefits to support them. Thus, if the survivor died, the person who took responsibility for the child would be entitled to child benefit, guardian’s allowance and, depending on his or her means, child tax credit.
  19. The respondent also found on the difficulty of administering the WPA if the officials charged with its administration had to investigate whether or not the deceased and the survivor had been cohabiting. That could also involve intrusive questioning of a survivor shortly after bereavement. By contrast marriage or civil partnership could readily be established by certificates from a public register. Problems in the administration of the WPA would also arise if a parent, who had made the necessary contributions, died leaving children in the care of more than one former partner. Such difficulty in administration as there would be was a relevant consideration which could be placed in the balance when the court assessed proportionality. But the respondent did not need to rely on that additional consideration as the instant Court was satisfied that without it the difference in treatment about which the appellant complained was proportionate and thus objectively justified. The appeal would have been dismissed.

Appeal allowed.

       i.          A declaration was issued 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.

Relevance to the Kenyan Situation

The Constitution of Kenya, 2010 in article 40 provides that every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya. Article 45 (1) provides that the family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State. Article 43 (1) (e) provides that every person has the right to social security. Kenya provides for National Social Security Fund which is responsible for provision of basic social security for its members and their dependants for various contingencies as provided under its Act. It has both mandatory contributions and voluntary ones. Section 37 of the National Social Security Fund Act (NSSF Act), No.45 of 2013 provides for survivor’s pension which shall be paid to the dependants, if the member dies before pensionable age and was contributing to the Pension Fund at the time of his death and not less than thirty six monthly contributions had been made by the member immediately preceding the date of death.

Section 43 of the NSSF Act provides for survivors’ benefit under the Provident Fund. The dependant relatives of a member of the Provident Fund shall be entitled upon the member’s death to a lump sum survivors’ benefit equal to the member’s Provident Fund Credit at the date of death, to the extent and subject to the conditions provided under the section. However in Kenya, the surviving spouse need not be under pensionable age to collect the benefits.

The surviving spouse includes only a wife or husband of the deceased and that means a bereaved unmarried cohabitee cannot benefit from the fund. However the children of the deceased in Kenya as in UK can benefit as the NSSF Act in its interpretation states that the dependant children include stepchildren, illegitimate children and adopted children in any manner recognized under the laws of Kenya.

UK law provides for unmarried cohabitees once they are bereaved in granting them payment of contributory social benefits made by their bereaved partners unlike Kenya which only recognizes wives or husbands, that is, married spouses. The UK case is important as it brings to light the issue of discrimination on the basis of marital status, the situation between unmarried surviving cohabitees and married surviving spouses in payment of contributory social benefits.

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