The UK Supreme Court has found exclusion of cohabitees from claiming Widowed Parent’s Allowance discriminatory on the basis of marital or birth status.
The applicant, Siobhan McLaughlin, and her partner had lived together for 23 years. They had four children, however never married. He passed away in January 2014. The Widowed Parent’s Allowance in Northern Ireland is a benefit that is payable to both widowed men and women who have dependent children. Despite her partner having the necessary contributions, the applicant was refused the payment as they were not married or in a civil partnership.
Ms McLaughlin brought judicial review proceedings arguing that the requirement to be married or in a civil partnership discriminated against the surviving partner and/or the children and was inconsistent with article 14 of the European Convention on Human Rights. Ms McLaughlin initially won in the High Court, however this was overturned in the Court of Appeal.
The Court held that the relevant facet of the relationship between the applicant and the deceased was the co-raising of the children and ‘for that purpose marriage and cohabitation were analogous.’ The allowance was in place to benefit the children, and the responsibility of the surviving partner was the same whether or not the partner and the deceased were married. The Court acknowledged that the promotion of marriage and civil partnership was a legitimate aim, however it was not a proportionate means of achieving this aim in this case.
The Court was guided by the UK’s international obligations, particularly under article 3 of the United Nations Convention on the Rights of the Child where the best interests of the child are a primary consideration. The Court noted that the great majority of Member States within the Council of Europe provide survivor’s pensions directly to the child irrespective of the martial status of their parents. The Court also referenced inconsistency with obligations under article 10 of the United Nations Convention on Economic, Social and Cultural Rights in denying children the benefit of social insurance simply because their parents were not married.
The Court therefore made a declaration of incompatibility under Section 4(2) of the Human Rights Act, finding unjustified discrimination in the enjoyment of a Convention right. The Court, however, stated that not every case in which an unmarried parent was refused the allowance would be unlawful, and left it to Government to decide whether to change the law.
Click here for the judgement in In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)