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United Kingdom: Supreme Court Rules on Widowed Parent’s Allowance for the Surviving Unmarried Partner

(Sept. 18, 2018) On August 30, 2018, the Supreme Court of the United Kingdom issued a ruling stating that “section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 [the Act] is incompatible with article 14 of the ECHR [European Convention on Human Rights], read with article 8, insofar as it precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased.” (In the Matter of an Application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48, para. 45, UK Supreme Court website; Social Security Contributions and Benefits (Northern Ireland) Act 1992, UK legislation.gov website; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, arts. 8 & 14, Nov. 4, 1950, ETS 5, European Court of Human Rights website.) The declaration places pressure on the government to amend or repeal the incompatible sections of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in order to provide equal opportunity under the law for both previously married and unmarried people who have lost their partners to be able to access financial support.

Section 39A of the Act, as amended by the Civil Partnership Act 2004, states that an individual is entitled to a widowed parent’s allowance solely if his or her deceased spouse or civil partner meets several conditions. (Social Security Contributions and Benefits (Northern Ireland) Act 1992, § 39A, legislation.gov website; Civil Partnership Act, 2004, sched. 24, pt. 5, legislation.gov website.) The Act, however, makes no mention of those couples who had children and had been cohabiting at the time one of the partners died. Siobhan McLaughlin, the applicant in the case, had been living with John Adams, her partner and the father of her four children, for 23 years when he died on January 28, 2014. (Siobhan McLaughlin [2018] UKSC 48, para. 2.) Adams met all of the requirements during his life for McLaughlin to be able to claim bereavement payments and Widowed Parent’s Allowance, bar one: Adams and McLaughlin had never married. (Id. para. 2.) Having been denied both payments by the Northern Ireland Department of Communities, McLaughlin applied for judicial review of the decision, claiming that the decision was incompatible with the ECHR. (Id. para. 3.)

Lady Hale, in writing the majority judgment, applied reasoning accepted by Lord Nicholls of Birkenhead and used by Lord Bingham in a previous case (M v. Secretary of State for Work and Pensions [2006] 2 AC 91, para. 17) to rule that Widowed Parent’s Allowance is one of the ways in which “the state evinces respect for children and the life of the family of which they are part” (Siobhan McLaughlin [2018] UKSC 48, para. 19), so Widowed Parent’s Allowance falls within the ambit of article 8 of the ECHR. (Id. para. 22.) Furthermore, in analyzing whether the actions of the Northern Ireland Department for Communities infringed McLaughlin’s article 14 rights, Hale took a purposive approach to interpreting Widowed Parent’s Allowance:

Widowed parents’ allowance is only paid because the survivor is responsible for the care of children who were at the date of death the responsibility of one or both of them. Its purpose must be to benefit the children. The situation of the children is thus an essential part of the comparison. And that situation is the same whether or not the couple were married to one another. It makes 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 is in work.” (Id. para. 27.)

Consequently, Hale ruled that denying McLaughlin the Allowance because she was unmarried infringed her article 14 rights. (Id. para. 42.)

Hale did acknowledge that the government had a legitimate aim in denying McLaughlin the payments—“to promote the institutions of marriage and civil partnership by conferring eligibility to claim only on the spouse or civil partner of the person who made the contributions.” (Id. para. 36.) However this, on its own, was insufficient to justify the infringement, as denying McLaughlin the payments was “manifestly” not a proportionate means of achieving that legitimate aim. (Id. paras. 38 & 39.)

Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.