Supreme Court declares law ‘incompatible’ with Human Rights

The Supreme Court, sitting in Belfast earlier this year, heard an Appeal on behalf of an applicant for Widowed Parent’s Allowance (‘WPA’), a contributory, non-means-tested social security benefit payable to widowed parents with dependent children.

Under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, a widowed parent is one who was married to, or in a civil partnership with, the deceased. 

‘In 1996 there were 1.5 million cohabiting partners in the UK; by 2017, the figure had risen to 3.3 million. Many mistakenly believe they have the same legal and financial rights and protections as married couples.’ (The Guardian, 30 August 2018).

In the instant case, the Appellant had been in a relationship with the deceased, with whom she had four dependent children, for 23 years.  Although he had paid his ‘stamp’, they never married.  The Department for Communities refused the Appellant’s application for WPA on this basis.

The question before the Court was whether the stipulation within the legislation of being married to (or in a civil partnership with) the deceased unjustifiably interfered with the Applicant’s rights under the European Convention of Human Rights (‘ECHR’).

At first instance, it was declared that the legislation was incompatible with the ECHR.  This was, however, overturned by the Court of Appeal in Belfast.

By a majority of 4 to 1, the Supreme Court allowed the appeal and declared the legislation incompatible with the ECHR insofar as it precludes any entitlement to WPA by a surviving unmarried partner of the deceased.

It now falls to the Government to determine if, and to what extent, the legislation should be varied.

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