HM v Secretary of State for Work and Pensions (BB); MK v Secretary of State for Work and Pensions (BB): [2023] UKUT 15 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 11 January 2023.
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Judicial Summary
On a complaint that the exclusion from bereavement payment and bereavement allowance of cohabiting couples is discrimination on the ground of marital status: (a) the Upper Tribunal is bound by Secretary of State for Work and Pensions v Akhtar [2021] EWCA Civ 1353 to hold that a bereaved member of a cohabiting couple is not in an analogous position to a bereaved person who was married or in a civil partnership (b) if not so bound, the Upper Tribunal would in any event so conclude (c). If (a) and (b) both incorrect, Secretary of State for Work and Pensions has justified the difference in treatment. On a complaint that the exclusion amounts to indirect discrimination against women on the ground of gender, the UT is satisfied by statistical evidence that there is differential impact requiring to be justified. Secretary of State for Work and Pensions has justified the measure to the extent of showing the necessary “very weighty reasons”. In neither of the foregoing cases did it make any difference that the case fell to be considered as within the ambit of art.8 as well as that of A1P1.On a complaint that the appellants, who would have wished to enter into civil partnerships with their opposite-sex partners, thereby complying with the conditions of entitlement for the benefits in issue, but were legally unable to do so, at a time when members of same-sex partnerships had the choice of marriage or civil partnership to do so, amounted to discrimination on the ground of sexual orientation, the situation appeared to be in essence the same as in Steinfeld and Keidan v Seretary of State for International Development [2018] UKSC 32. Secretary of State for Work and Pensions did not suggest otherwise but argued that even where a court otherwise has jurisdiction to make a declaration of incompatibility, the Human Rights Act does not permit it where an earlier declaration has been made and Parliament has already accepted upon it. The UT has no jurisdiction to make such a declaration in any event. Obiter, SSWP’s submission was accepted, applying dicta in Wilson v First County Trust Ltd (No.2) [2002] UKHL 40.