The Court of Appeal in Northern Ireland has upheld a challenge to the decision to withhold bereavement support payment to the family of a woman who was severely disabled due to a progressive degenerative condition.
Mrs Pauline O’Donnell passed away 2017 leaving a young family. Her husband, Michael, made a claim for bereavement support and was refused on the grounds that the benefit could not be paid in circumstances where the deceased had not paid national insurance contributions. Mrs O’Donnell had not paid the necessary contributions because, having been severely disabled from an early age, she had never been able to work and fulfil the contribution requirements.
Mr O’Donnell appealed the refusal of the Support Payment to the Social Security Appeal Tribunal on the basis that it unjustifiably discriminated against him and his family on account of the disability of his deceased wife. The Tribunal referred a question to the Court of Appeal as to whether the provisions of sections 29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 were incompatible with Article 14 read with Article 8 of and/or Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
The Court of Appeal found that the current system discriminated against the family as the “deceased, who as a result of disability could not work and could never meet the contribution condition, was treated in exactly the same way as an individual who could work and who could meet the contribution condition but did not do so". The Court held that the government failed to justify the similarity in treatment of those with and without severe disabilities.
In order to give effect to the 2015 Act in a way that was compatible with the ECHR, the Court interpreted section (30)(3) to enable those who were never able to work to be treated as though they had met the paid contribution requirement.
The case will now be sent back to the Tribunal for a final decision on the award.
Click here for the full decision.