Policy paper

The Government response to representations made on proposals for a draft Bereavement Benefits (Remedial) Order 2021, including the eighth report from the Joint Committee on Human Rights, Session 2021-22 (HC 594, HL 91).

Updated 15 December 2022

Introduction

1. This paper presents a draft Remedial Order to Parliament together with the Government’s response to the Joint Committee on Human Rights’ (JCHR) report of 21 November 2021, and representations received from other interested parties.

2. On 15 July 2021, the Government laid before Parliament a proposal for a draft Remedial Order in accordance with section 10 of, and Schedule 2 to, the Human Rights Act 1998 (HRA). The purpose of the Order is to amend the primary legislation governing Widowed Parent’s Allowance (WPA) and the higher rate of Bereavement Support Payment (BSP) to extend eligibility for both benefits to surviving cohabiting partners with dependent children, who were not in a legal union with their late partner when they died.

3. This Order amends the following primary legislation: the Social Security Contributions and Benefits Act 1992, the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and the Pensions Act 2014. It also makes amendments to a range of secondary legislation. This is to implement the judgment of the Supreme Court in the case of McLaughlin [Ref: 2018 UKSC 48] and the High Court in the case of Jackson [R (Jackson and others) v SSWP (2020) EWHC 183], where the Courts found that the primary legislation governing WPA (McLaughlin) and the higher rate of BSP (Jackson) is incompatible with Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). They found that existing primary legislation unfairly discriminates against children based on the legal status of their parents’ relationship by restricting WPA and the higher rate of BSP eligibility to claimants who were in a legal union with the deceased.

4. A Summary of representations is made in accordance with the requirements of paragraph 3(2) of Schedule 2 to the HRA 1998.

Response to recommendations

Summary of representations made

5. The JCHR welcomed the Government’s action in proposing the draft Remedial Order and were satisfied that the procedural requirements for the making of a Remedial Order have been met. (JCHR Paragraph 38)

6. The Committee were satisfied, subject to one exception, that the proposed changes would address the identified incompatibilities with Article 14 of the ECHR, as they would result in surviving cohabiting partners with dependent children being treated in the same way as those who were married or in a civil partnership with dependent children. The Committee noted, however, that the Remedial Order must be amended to ensure that pregnant cohabiting partners would be treated the same as pregnant spouses and civil partners for WPA purposes. (JCHR Paragraph 44)

7. The Committee also recommended that:

7.1. The proposed draft Remedial Order should be amended so that, where there is more than one person who satisfies the conditions of entitlement for WPA or the higher-rate of BSP, the award should be split between them. (JCHR Paragraph 50)

7.2. The Government should consider 9 February 2016 as an alternative date from which the amendments in the draft proposed Order should be treated as having effect. Alternatively, the DWP and the Northern Ireland Department for Communities might consider establishing a scheme to provide ex-gratia payments to past victims of discrimination. (JCHR Paragraph 59)

7.3. Consequential amendments should be made to ensure that individuals are not prevented from benefitting from the draft proposed Order as a result of them having previously had claims for WPA or BSP refused. (JCHR Paragraph 68)

7.4. The Government should move away from the marriage analogy as a way of defining cohabitation and consider using the form of words recommended by the Law Commission in a similar context in 2007: “living as a couple in a joint household”.

7.5. The Government should consider more substantial reform by making children directly eligible for the bereavement benefits designed to support them. (JCHR Paragraph 73)

7.6. The Government should consider whether there is a real risk the legislation governing BSP will remain incompatible with Article 14 ECHR, as read with Article 8 and Article 1 of the First Protocol, as it continues to discriminate between partners without children who are and are not in legal unions. (JCHR, Paragraph 77)

7.7. The Government should consider carefully and be clear about the implications of the Remedial Order for taxation, tax credits and Universal Credit, ensuring that those who would receive retrospective payments under the Remedial Order are not disadvantaged. (JCHR Paragraph 79)

7.8. The Government carries out an effective publicity campaign to ensure that those who become eligible for WPA or higher-rate BSP as a result of the Remedial Order are made aware of this. (JCHR Paragraph 81)

8. In addition to the recommendations made by the Joint Committee on Human Rights, the Government notes the representations made by charities and individuals both to the Committee and directly to the Government. These representations largely mirrored those of the Committee, and for this reason we do not summarise any other representations in full here. Those representations have, instead, been used to inform the content of this response.

Government’s response

9. The Government welcomes the JCHR’s observations on the Remedial Order. We have set out each of the JCHR’s recommendations in order below and addressed each in turn.

10. The proposed draft Remedial Order must be amended to ensure that pregnant cohabiting partners would be treated the same as pregnant spouses and civil partners. (JCHR Paragraph 44)

10.1. The Government accepts this recommendation. The Government is grateful to the Committee for raising this point.

10.2. Under current legislation, a widowed survivor is entitled to WPA if they were pregnant when their husband died (and they meet the usual conditions of entitlement to the benefit). However, they have to be pregnant by their late husband, or living with their husband immediately before the death and be pregnant by artificial insemination or in-vitro fertilisation (IVF). The policy intent was to ensure that the baby was that of the husband.

10.3. The situation is different for surviving civil partners in that the survivor can only access WPA if they were pregnant as a result of artificial insemination and IVF. This is because, prior to WPA being replaced by BSP in April 2017, civil partnerships could only take place between people of the same sex. Although opposite sex civil partnerships have since been introduced, this was not until 2019 by which time WPA was a legacy benefit.

10.4. We accept that, under the proposed draft Remedial Order, we have only allowed cohabiting pregnant survivors to access WPA if they were pregnant by artificial insemination and IVF. We would not want to deny benefit to cohabiting survivors who were pregnant naturally by their late partner, as that would be treating married survivors more generously than cohabitees. We have therefore amended the draft Remedial Order such that pregnant cohabitee WPA claimants are treated the same as claimants in a civil partnership or marriage.

11. The proposed draft Remedial Order should be amended so that, where there is more than one person who satisfies the conditions of entitlement for WPA or higher rate BSP, the award should be split between them. (JCHR Paragraph 50)

11.1. The Government rejects this recommendation.

11.2. The proposed draft Remedial Order provided for only one person to be entitled to the higher rate of BSP or WPA per death. Where there is more than one claimant entitled to benefit; we would prioritise residency. This means that the claimant who was living with the deceased on the date of death would be entitled.

11.3. Where more than one potential claimant is resident in the same household; we proposed a hierarchy as follows:

• whichever survivor was married or in a civil partnership with the deceased on the date of death and entitled to Child Benefit (or was pregnant on the date of death) would be entitled.
• if neither prospective claimant was in a legal union with the deceased (or the person in a legal union did not have dependent children), the person entitled to Child Benefit (or was pregnant on the date of death) would be entitled.
• if neither prospective claimant was in a legal union with the deceased and more than one person had entitlement to Child Benefit, or was pregnant, the person who had cohabited with the deceased for the longest time on the date of death would be entitled.
• If all prospective claimants had been living with the deceased for the same amount of time and all had entitlement to Child Benefit and/or were pregnant, the claimant who had the eldest child would be entitled.
• In the rare case that a claimant has not yet been determined, entitlement would be determined by the exercise of Secretary of State’s discretion.

11.4. We also proposed that there should be transitional protection to ensure that those claimants already in receipt of WPA or BSP before the date the Order comes into force do not lose their entitlement for the duration of the award.

11.5. The JCHR expressed concern that this approach would result in some surviving (separated) spouses, or partners with children, missing out on bereavement benefits, and asked Government to consider splitting awards. The JCHR ultimately agreed that our draft proposed approach satisfied the requirement of remedying the incompatibility, however, they recommended splitting the award where there was more than one potential claimant.

11.6. We reject the JCHR’s recommendation because splitting an award of a benefit is not an existing feature of the Social Security system and would run counter to the general welfare principle of paying once per event. Splitting an award would be very complex to administer, especially if claims were made at different times in respect of the same death, or in cases where there are more than two potential claimants. This would undermine the purpose of BSP, which is intended to be easy to understand and simple to claim.

11.7. The JCHR also questioned why, where more than one claimant is resident with the deceased, a spouse or civil partner would take precedence over a cohabiting partner and considered that splitting the benefit would overcome this issue. Whilst we recognise that our proposed hierarchy would involve treating those in a legal union more favourably than a cohabitee where there is more than one potential claimant, this treatment is limited to specific (and rare) cases. On balance, we believe that in these circumstances, the fairest way to deliver a benefit for only one person is to use marriage or civil partnership. Where there is more than one potential claimant, and one is in a legal union with the deceased, we believe it is a fair assumption that the existence of a legal union implies the existence of a more established relationship.

11.8. The JCHR noted that our proposed hierarchy largely indicated a reasonable attempt to ensure that the benefit is payable to just one claimant, when there is more than one potential claimant following a death. They also observed that the Secretary of State’s discretion to determine entitlement in rare circumstances where the hierarchy does not identify a single claimant was broad and would need to be exercised carefully to ensure fairness.

11.9. The policy intent behind our proposed hierarchy is to identify the claimant with the most established relationship with the deceased. We have updated the drafting of the hierarchy to improve its effectiveness in delivering this outcome, by incorporating the final two limbs into a single limb for residual cases where the hierarchy does not identify a single claimant. In these cases, entitlement would be determined by the exercise of Secretary of State’s discretion. To support this (and in response to the JCHR’s comment about the breadth of the discretion), she will issue a policy statement in respect of making decisions under this limb. We believe that this amended drafting will better cater for the potential complexity of such cases, although we do expect these cases to be very rare.

12. The Government should consider 9 February 2016 as an alternative date from which the amendments in the draft proposed Order should be treated as having effect. Alternatively, the DWP and the Northern Ireland Department for Communities might consider establishing a scheme to provide ex-gratia payments to past victims of discrimination. (JCHR Paragraph 59))

12.1. The Government rejects this recommendation.

12.2. The proposed draft Remedial Order provided for these changes to take effect from the date of the McLaughlin judgment in the Supreme Court, 30 August 2018. This was the date of the final judgment in the McLaughlin case and could reasonably be considered the date from which WPA legislation was considered incompatible with the ECHR. Before this date, there was no declaration of incompatibility because the Court of Appeal in Northern Ireland had decided the legislation was compatible with the ECHR.

12.3. Whilst we accept that more people would benefit from the 2016 start date, notably Ms McLaughlin, whose partner died in 2014, the legal process did not end until the Supreme Court’s judgment on 30 August 2018. This was the date that the incompatibility was accepted as final, and we therefore consider it a logical and fair start date. It is not routine for Social Security changes to be made retrospectively, and to use an earlier start date would also bring considerable administrative complexity and cost to the Exchequer.

12.4. Whilst recognising that the intention was only to allow payments in respect of entitlement after 30 August 2018, rather than backdate to the date of death if that was before then, the JCHR considered that the Order as drafted would allow for the latter. We agree with this point. We have therefore amended the drafting of Articles 6(2), 6(3), 9(2) and 9(3) of the draft Order to provide that the maximum entitlement in respect of deaths before 30 August 2018 depends on the date of death (and, where the claim is made more than a year after the Order comes into force, when the claim is made). We have also made consequential amendments to Article 3 as a result of these changes (see paragraph 21.1).

12.5. The JCHR also recommended, that, as an alternative, the DWP and the Northern Ireland Department for Communities should consider establishing a scheme to provide ex-gratia payments to past cases. This would allow Ms Mclaughlin to receive all the WPA she would otherwise have been entitled to, rather than just her entitlement after 30th August 2018.

12.6. We have considered whether to set up an ex-gratia scheme and decided not to do so. We consider that the logical and fair start date for payments is 30 August 2018. The Order provides for this, so there is no need for an ex gratia scheme. If we considered that an earlier start date would be more logical and fairer, the Order could provide for such a date. Again, there would be no need for an ex gratia scheme.

13. Consequential amendments should be made to ensure that individuals are not prevented from benefitting from it as a result of them having previously had claims refused. (JCHR Paragraph 68)

13.1. The Government rejects this recommendation.

13.2. We are satisfied that the Remedial Order as drafted will cover claimants who have previously been refused benefit, provided they are otherwise covered by the terms of the Remedial Order. The Government confirms that it intends to administer the legislation on the understanding that a previous refusal of bereavement benefit will not automatically prevent entitlement in accordance with the Remedial Order. Where there has been a previous refusal, the intention is to award in accordance with the Order if all the requirements in the Order are met.

13.3. As such, previous claim refusals will not prevent eligibility under the Remedial Order.

14. The Government should move away from the marriage analogy as a way of defining cohabiting and consider using the form of words recommended by the Law Commission in a similar context in 2007: “living as a couple in a joint household”. (JCHR Paragraph 73).

14.1. The Government rejects this recommendation.

14.2. The draft Remedial Order defines cohabiting partners as two persons who are not married to or civil partners of each other but are living together as if they were married or civil partners. The JCHR considered it an outdated approach to define cohabitation in relation to marriage and civil partnership on the basis that it implies that cohabitation is an imitation of marriage or civil partnership rather than an equal alternative. They would prefer to see a reference to “living as a couple in a joint household”.

14.3. Since the Law Commission report in 2007, the form of words they recommend has not been adopted by the social security system. Instead, the social security system uses the same sort of wording as the Remedial Order. We do not think it is appropriate for the Remedial Order to depart from the wording used by the social security system in general. It is beyond the scope of the Remedial Order to introduce a wider change to the wording used in the social security system.

15. The Government should also consider more substantial reform by making children directly eligible for the bereavement benefits designed to support them. (JCHR Paragraph 73)

15.1. The Government rejects this recommendation.

15.2. We would not want to pay bereavement benefits direct to children who lose their parents. Children are not typically eligible for support from the welfare system in their own right. The immediate costs of bereavement are not necessarily incurred because of the presence of children of the family, nor do they fall on the children themselves. It is unlikely that a child bereaved of one or both parents would require financial self-sufficiency as such needs would be met by their adult caregiver. To confer bereavement benefit entitlement on to children would completely change the nature of the benefit and assume the costs of bereavement are directly borne by, and linked to, children.

16. There is a real risk the legislation governing BSP will remain incompatible with Article 14 ECHR, as read with Article 8 and Article 1 of the First Protocol, as it continues to discriminate between partners without children who are and are not in legal unions. (JCHR Paragraph 77)

16.1. The Government notes the Committee’s view on the risks. The Committee does not make a recommendation for changes to the Remedial Order. No such changes are made and the Government does not believe that any such changes would be appropriate.

17. The Government should consider carefully and be clear about the implications of the Remedial Order for taxation, tax credits and Universal Credit, ensuring that those who would receive retrospective payments under the Remedial Order are not disadvantaged. (JCHR Paragraph 79).

17.1. The Government accepts this recommendation.

17.2. WPA is considered in full for Universal Credit, with a £10 disregard for legacy benefits. By legacy benefits, we mean income-related Employment and Support Allowance and income-based Jobseeker’s Allowance, Income Support, Pension Credit and Housing Benefit. WPA also counts towards the Benefit Cap.

17.3. Retrospective payments of WPA would be assessed at the point of award, but given their size, people could lose all entitlement to income-related benefits and passported benefits such as free school meals. This would disadvantage cohabitees over their married counterparts who would have had their WPA assessed over the period of award.

17.4. We have therefore concluded that retrospective WPA payments should be treated as capital and disregarded for 12 months (or 52 weeks), and will not count towards the Benefit Cap. We are also introducing a 12-month capital disregard for retrospective payments of higher rate BSP made under this Order. The schedule to the Order contains amendments to regulations to add new provisions into the existing capital disregards for income-related benefits.

17.5. Whilst BSP is tax-free, WPA is taxable. It is treated as income for both income tax and Working Tax Credit (WTC) purposes. Under the existing tax accrual rules, WPA is treated as income received in the year of entitlement rather than in the year of payment. This means that retrospective awards of WPA would be treated for tax purposes as if the award was made at the correct time. Thus, cohabitees would be treated the same as those in a legal union for tax purposes.

17.6. To avoid a position where cohabitees have a more favourable tax position than their married counterparts and to ensure a consistent approach with the tax implications of arrears of DWP payments, we do not propose to change the tax treatment of retrospective WPA awards. We will work with HMRC to ensure that claimants are fully aware of the potential tax impacts, and that a process is in place to allow for the flagging cases for reassessment to HMRC.

18. We recommend the Government carries out an effective publicity campaign to ensure that those who become eligible for WPA or higher rate BSP as a result of the Remedial Order are made aware of this. (JCHR Paragraph 81)

18.1. The Government accepts this recommendation.

18.2. While it will not be possible to proactively identify every possible beneficiary of this change, the Government fully intends to effectively publicise the change to the law. Our communication plan will help ensure surviving cohabitees can make an informed decision about submitting a claim. The Government intends to communicate with key stakeholders and interested parties through a variety of methods to maximise the reach of our communications out to individuals who may potentially be eligible under the Order.

Drafting Points

19. The JCHR also set out some minor technical and drafting points for the Department to consider, as follows:

19.1. The preamble should cite the full conditions precedent from section 10(1)(a) of the HRA. The preamble has been changed.

19.2. In article 4(3) (inserting a new subsection (1D) into section 30 of the Pensions Act 2014) and in article 7(3) (inserting a new subsection (1D) into section 29 of the Pensions Act (Northern Ireland) 2015) the references to subsection “(2)(aa)” should be to subsection “(1)(aa) These references have been corrected. The Department is grateful for the Committee spotting this error.

19.3. Footnote (e) and (f) on page 1: “See” is in italics. This has been corrected.

19.4. Footnote (c) on page 2: if this is to repeat the content of footnote (a) on page 1, it will not be necessary. The purpose of this footnote is to set out the history of s.39A which was inserted by article 52(2) of S.I. 1999/3147 (N.I. 11).

19.5. Footnote (d) and (e) on page 2: before the amendments insert the instrument year and number. This has been corrected.

20. Other minor technical amendments include completing the footnotes and explanatory notes, and correcting cross references, punctuation and language.

21. We have also made some minor technical changes to the Order to ensure that the draft Remedial Order works as intended. These include:

21.1. An amendment to Article 3, which modifies the Social Security (Claims and Payments) Regulations 1987 and Northern Ireland equivalent, to make clear that those making a claim for BSP in respect of a death before the Order comes into force have 21 months to claim (although the amount that they are entitled to will depend on when they claim and the date of death).

21.2. A modification to section 1(2) of the Social Security Administration Act 1992 and the Northern Ireland equivalent to ensure that claimants whose entitlement period covers a period more than 12 months before they claim, are not prevented from receiving an award.

21.3. Amending section 46 and schedule 4A of the Social Security Contributions and Benefits Act 1992 and the Northern Ireland equivalent to apply existing rules on the calculation of the rate payable of WPA to survivors of cohabiting partnerships who are entitled as a result of the Order.

Urgent vs Non-Urgent procedure

22. At Paragraph 34 of their report the JCHR asked why the Government chose to use the non-urgent procedure rather than the urgent procedure available under Schedule 2 of the HRA. However, they did agree that there was insufficient justification for using the urgent procedure.

23. The Government considered that the non-urgent procedure was appropriate for this Remedial Order. The position is not straightforward, as can be seen by the length of the Order. The Government was keen for there to be an opportunity for representations to be made in relation to this Order in accordance with the non-urgent procedure.