CG/0187/2009

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing

1. This appeal by the claimant does not succeed. I confirm the decision of the Eastbourne tribunal made on 9th September 2008 under reference 171/08/00640. This is that, in respect of the death of Mr L, the claimant is not entitled to bereavement benefits.
 
2. I held an oral hearing of this appeal on 5th May 2010. The claimant attended in person and was represented by Tom Richards of counsel from the Free Representation Unit. The Secretary of State was represented by Melissa Chan from the office of the Solicitor to the Department for Work and Pensions. I am grateful to all of them for their assistance.

Background and Procedure

3. The claimant was born on 15th February 1954 and on 1st June 1986 started living with the deceased, Mr L. They were (domestic) partners and, in the terms of the social security legislation, appear to have been” living together as husband and wife” although they never actually married. Although some other people did assume that they were married there is no evidence that they represented themselves as being married. They did not believe themselves to be married. There were no dependent children. They had joint finances, including a joint mortgage and joint bank account and lived together until Mr L sadly died on 17th April 2008. I do not know what kind of national insurance contributions record Mr L had.

4. After seeking advice (which might have been given or understood wrongly), on 22nd May 2008 the claimant made a claim for bereavement benefits. On 5th June 2008 the Secretary of State refused to make any award to the claimant because she had not actually been married to the deceased. This refusal was upheld by the tribunal on 9th September 2008 and on 22nd December 2008 the District Tribunal Judge refused to give the claimant permission to appeal to the Upper Tribunal. She renewed her application directly to the Upper Tribunal and on 9th February 2009 I directed that there be an oral hearing of her application. That took place on 19th March 2009 and I gave permission to appeal so that the Upper Tribunal could consider the meaning of the word “spouse” in this context and the relevance of the Human Rights Act 1998. It is agreed that the Upper Tribunal cannot make a declaration of incompatibility under the 1998 Act (section 4(5) of the Act).
 
Bereavement Benefits

5. So far as is relevant section 36 of the Social Security Contributions and Benefits Act 1992 provides that:

36(1)(a) A person whose spouse or civil partner dies on or after the appointed day shall be entitled to a bereavement payment if ….

36(2) A bereavement payment shall not be payable to a person if-
(i) that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse’s death.

6. Thus, a bereavement payment is a one-off lump sum payable in specified circumstances and subject to the contributions record of the deceased, to a person whose spouse or civil partner has died. Civil partners are of the same sex. Neither of the words “spouse” or “married” is defined.

7. Section 36(2)(i) refers to the situation where a claimant was married to the deceased but at the time of death was living with a different person of the opposite sex, and would not prevent payment in the present case. I refer to it in order to demonstrate the difference in wording.

8. Section 39B of the 1992 Act provides in certain circumstances, for a limited period and subject to the contributions record of the deceased, for a weekly bereavement allowance to a person “whose spouse or civil partner dies” where there are no dependent children. Again there is no definition of “spouse”. There are provisions removing entitlement from the “surviving spouse” if he or she and a person of the opposite sex to whom he or she person is not married are living together as husband and wife. Clearly the use of the word “surviving” means that this provision applies after and not at the time of the death of the deceased.

The Meaning of “Spouse”

9. Bereavement benefits were introduced in 2001 to replace widows’ benefits, and the earlier provisions did not use the word “spouse”. Decisions on the earlier law, for example by the Social Security Commissioner in R(G) 1/04, made it clear that widows’ benefits were only available where the claimant and the deceased had been married in the conventional sense following a proper legally recognised ceremony and so on. The question is whether the use of the word “spouse” effectively changes the position.

10. Mr Richards argued that, as matter of ordinary construction within domestic law, the word “spouse” had or should be given a meaning broad enough to include the relationship between the claimant and the deceased. Further, or alternatively, such a meaning was required by the Human Rights Act 1998 to secure compliance with the European Convention on Human Rights (“the Convention”).

11. In support of what I call his “domestic law argument” (although of course the 1998 Act is also domestic law), Mr Richards suggested that in terms of the need for financial support of those who are bereaved there is no difference between the situation of the claimant and those who were married at a proper legally recognised ceremony; the legislation could easily have defined “spouse” by reference to the Marriage Acts but had not done so;  social security legislation did recognise the concept of “living together as husband and wife” for many purposes; even if what he called a “legal marriage” has a special status, that does not necessarily mean that the word “spouse” is intended to reflect that status.
12. Both parties agreed that the dictionary definition of “spouse” refers to husbands and wives and Mr Richards suggested that “there is no social consensus that to be a person’s husband or wife requires strict legal marriage”. He referred in particular to two decisions of the House of Lords. Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 dealt with the question of whether a same sex surviving partner could succeed to a protected tenancy under the Rent Act 1977. To do that he had to be a “spouse” or someone who had been living with the deceased tenant “as his or her husband and wife” or as a member of the late tenant’s family. Although the House of Lords decided that the survivor could qualify as member of the family, it held that the extension of the right to a survivor who had been living with the deceased “as his or her husband and wife”, meant that the word “spouse” did not itself include that relationship. However, Lord Slynn said (at 34), “In other statutes, in other contexts, the words may have a narrower or wider meaning than here”.

13. In Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, which was about the division of assets between former cohabitants, Lady Hale said (at para 45):

“Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage – in 2003, 78.7% of spouses gave identical addresses before marriage, and the figures are even higher for second marriages … But increasing numbers of couples cohabit for long period without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves “as good as married” anyway …”.

14. I do, of course, accept all of this, but it does not really help Mr Richards. Lady Hale was clearly distinguishing between the states (a) of being married and (b) of being unmarried and cohabiting, but in any event she did not use the word “spouse”.

15. Ms Chan referred to a number of decisions, and I have seen others, which dealt with the meaning of “married” or “widowed” for the purposes of the pre-2001 rules. These do not help with the meaning of “spouse”. The arguments that if parliament had intended to exclude unmarried cohabitants it could have said so expressly, and that if parliament had intended to include unmarried cohabitants it could have said so expressly, cancel each other out. The meaning of “spouse” must be considered afresh.

16. In my view the meaning of the word “spouse” in general use is well understood to refer to a person married in the conventional sense to the other spouse following a proper legally recognised ceremony. A man might refer to “the Mrs” or “my other half” or “my better half” or even “my wife” (in the sense of a so-called common-law wife) without meaning that the two of them are necessarily formally married to each other. I cannot envisage that a person would introduce their partner with whom they live as husband and wife but to whom they are not formally married by using the word “spouse”. This is reinforced by what the dictionaries give as the etymological derivation of the word, linking it to some kind of vow or pledge.

Human Rights Law

17. Mr Richards argued that the Upper Tribunal is obliged to give a broader meaning to the word “spouse”, so as to include the claimant, to avoid discrimination against her contrary to the Human Rights Act 1998 and the European Convention on Human Rights, when compared with a woman who is in exactly the same position as her except for having been married to the deceased. This raised questions as to whether entitlement to bereavement benefits is within the scope of the Convention, whether marriage is a “status”, and whether the difference in treatment can be justified and is proportionate.

Human Rights Act 1998

18. The main relevant provisions of the Human Rights Act 1998 are as follows:

3(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights. 

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

6(2) Subsection (1) does not apply to an act [of a public authority] if-
(a)	as a result of one or more provisions of primary legislation the authority could not have acted differently; or
(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions. 

6(3) In this section "public authority" includes –
(a)	a court or tribunal

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
	(a) …
(b)	rely on the Convention right or rights concerned in any legal proceedings

The Relevant Convention Provisions

19. For the purposes of the present appeal, the main provisions of the Convention are as follows.

Article 8:
 
8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others.  

Article 14:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Article 1 of Protocol 1:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Article 14 and the Convention Rights

20. Article 14 is not a free-standing anti-discrimination provision. It only comes into play to secure “enjoyment of the rights and freedoms set forth in this Convention”. However, a breach of Article 14 does not only arise where there has been a breach of another article. Article 14 also applies to secure, without discrimination, the way in which the various rights are secured, and all that has to be shown is that there has been unlawful discrimination in connection with a right which comes within the ambit of one of the relevant articles (see eg Petrovic –v- Austria Case No 56/1996/775/976). 

21. The parties are divided over whether entitlement to bereavement benefit falls within the ambit of article 8. I do not have to resolve this because Ms Chan quite rightly accepts that all social security benefits fall within the ambit of article 1 of protocol 1 for the purposes of article 14, and also that marriage is a status within the meaning of article 14. It is not necessary to review the many decisions on these issues, although I note that in R (Hooper and Others) v Secretary of State for Work and Pensions [2005] UKHL 29 the House of Lords accepted the agreement of the parties that widows’ social security benefits do fall within the ambit of article 8.

Article 14 and Justification
22. It is not every difference in treatment that constitutes discrimination within the meaning of Article 14. If a person is treated differently from another because of status, there is discrimination for the purposes of Article 14 if the difference in treatment does not pursue a legitimate aim or is disproportionate to the aim pursued. 22. In Belgian Linguistics (No 2) (1979-80) 1 EHRR 252 at 284 the European Court of Human Rights said:
“ … Article 14 does not forbid every difference of treatment in the exercise of the rights and freedoms recognised …
… [T]he principle of equality of treatment is violated if the distinction has no objective and reasonable justification.  The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles that normally prevail in democratic societies.  A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aims sought to be realised”.
23. In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 (“Carson”), drawing an important distinction Lord Hoffman said:

“14.  … Discrimination means a failure to treat like cases alike.  There is obviously no discrimination when the cases are relevantly different….  There is discrimination only if the cases are not sufficiently different to justify the difference in treatment….”
	
	15. Whether cases are sufficiently different to justify the difference in treatment is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and … gender, are seldom, if ever, acceptable grounds for differences in treatment … the Strasbourg court has given [article 14] a wide interpretation… and it is therefore necessary … to distinguish between those grounds of discrimination which prima facie offend our notions of respect due to the individual and those which merely require some form of rational justification….

16. There are two important consequences of making this distinction.  First, discrimination in the first category cannot be justified merely on utilitarian grounds, e.g. that it is rational to prefer to employ men rather than women because more women give up their employment to look after children.  That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit.  On the other hand, differences in treatment in the second category (e.g. on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest.  Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.

17. There may be borderline cases in which in which it is not easy to allocate the ground of discrimination to one category or the other and … there are shifts in the values of society on these matters … But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy …”

24. In Stec v United Kingdom (2006) 43 EHRR 47 the European Court of Human Rights said:

“51. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a beach of the article … A difference in treatment is, however, discriminatory, if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

52. The scope of this margin will vary according to the circumstances, the subject matter and the background … As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention … On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy …”

Is the Difference in Treatment Discrimination?

25. Mr Richards rightly accepted that “the protection and promotion of the legal institution of marriage is, in principle, a legitimate aim”. This follows from the case-law of the European Court of Human Rights.). In Shackell v United Kingdom (Application 45851/99) the surviving woman (unmarried but long term cohabiting) partner of a deceased man had been refused widow’s benefit on the grounds that they had not been married.  Declaring the application inadmissible, the Court said:
“ … [M]arriage remains an institution which is widely accepted as conferring a particular status on those who enter it.  The situation of the applicant is therefore not comparable to that of a widow”….  In any event… a difference in treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship between the means employed and the aim sought to be realised ….  Further, the Court reiterates that “States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law…”.  The Court again notes that marriage remains an institution that is widely accepted as conferring a particular status on those who enter it and, indeed, it is singled out for special treatment by Article 12 of the Convention.  The Court considers that the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government”.
26. Although hitherto the European Court of Human Rights has taken the view that member states may give preferential treatment based on marriage, the concept of human rights within the European system is a developing one and such questions are never closed. Nevertheless, there is no evidence that so far the Court has changed its position (and see Burden v United Kingdom Application 13378/05).

Rational Explanation and Justification

27. Ms Chan argued in effect that that the policy of the United Kingdom is to support marriage and to confer on it a particular privileged status. She referred to the case of Lindsay v United Kingdom 1986 in which the (now abolished) European Commission for Human Rights said:

“Marriage continues to be characterised by a corpus of rights and obligations which differentiate it markedly from the situation of men and women who cohabit”.

28. Government policy (which, as I understand it, has not in this context been a matter of political dispute between the major political parties) was encapsulated in paragraph 18 of A New Contract for Welfare: Support in Bereavement (1998 Command Paper 4104):

“We have considered the position of unmarried couples. The Government recognises and supports marriage. The contributory system had always been based on legal marriage. Marriage provides a straightforward method of deciding whether benefits should be paid. We believe that there would be difficulties in defining and establishing entitlement for unmarried couples at what would be a most difficult and sensitive time. Intrusive questioning would be hard to avoid.”

29. I share the doubts of Mr Richards about these justifications, which strike me as disingenuous. The concept of “living together as husband and wife” is of widespread use in social security law, even in relation to contributory benefits, as in section 36 itself (see 36(2) of the Social Security Contributions and Benefits Act 1992 in paragraph 5 above) and the Secretary of State often has to decide whether two people are or have been an unmarried couple for the purpose of deciding benefit entitlement. Neither is the Secretary of State reticent in asking intrusive questions at a time of bereavement for the purposes of claims to payments for funeral expenses from the social fund.

30. Nevertheless, I have no doubt that when people in the United Kingdom decide to marry or not to marry in the formal legal sense they are almost always aware that certain bureaucratic consequences follow, especially in relation to pension matters, and that is sometimes part of the consideration in making the decision. Mr Richards having accepted that “the protection and promotion of the legal institution of marriage is, in principle, a legitimate aim” it is difficult to see how he can argue that all differences in treatment in social security provision between married couples and others are necessarily irrational.

31. That leaves the question of whether there is “a reasonable relationship of proportionality between the means employed and the aims sought to be realised”. The benefits in question in this appeal are not means tested. At the time of Mr L’s death the lump sum bereavement payment was £2,000 and the bereavement allowance for a survivor aged 54 was £84.35 weekly. An unmarried survivor with no financial resources might have been entitled to an amount not far short of £2000 for the funeral expenses and (assuming that there were no children and that other conditions of entitlement were satisfied), would have been entitled to housing costs in many cases in addition to £60.50 weekly income support or income based jobseekers’ allowance (or £110.15 if incapable of work). I am not suggesting that these amounts are generous, or that there are no anomalies or cases where the system operates unfairly. The Administrative Appeals Chamber is only too familiar with such cases. However, it cannot really be said that, in the context of the overall social security system, the difference in treatment between married and unmarried survivors for the purposes of bereavement benefits is such a disproportionate method of favouring formal legal marriage over unmarried cohabitation as to amount to unlawful discrimination for the purposes of the Human Rights Act 1998.

32. The question is not what my policy would be if I were responsible for drafting the legislation. The questions are whether the Secretary of State has provided a rational explanation for the policy of the law in this case, which he has, and whether the method of achieving the objectives of that policy are proportionate, which they are. The State has, as has been observed above, a wide margin of appreciation in the implementation of social policy and in economic matters. The legal position in the present case is well within that margin.

33. For the above reasons this appeal by the claimant fails.

H. Levenson
Judge of the Upper Tribunal 

16th June 2010