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Appellants bring human rights challenge against Bereavement Payment and Bereavement Allowance rules in the Upper Tribunal



Hackney Community Law Centre is representing an appellant in the Upper Tribunal, who is one of two appellants, arguing that the exclusion of cohabiting couples without children from claiming Bereavement Payment and Bereavement Allowance is contrary to their rights under Article 1 Protocol 1 and / or Articles 8 and 14 of the European Convention of Human Rights. The appeals are being heard on 27 and 28 June 2022 before UTJ Ward.


Bereavement Payment and Bereavement Allowance are welfare benefits to assist recently bereaved partners with the financial impact of bereavement. Under the current rules, partners who were living together as if they were married or in a civil partnership, but do not have children, are excluded from claiming these benefits.


Similar challenges on human rights grounds succeeded against the Secretary of State for Work and Pensions in the cases of Mclaughlin and Jackson, although those two cases concerned cohabiting couples with children.


The Law Centre’s client, a Hackney resident, is a single parent to a child under the age of five. When her partner passed away in 2015, she made a claim for Bereavement Benefit to assist her with funeral costs, which she was struggling to afford.


Despite the Appellant having been in a loving, long-term and committed relationship with her partner for over twenty years, she was excluded from claiming bereavement benefits because she did not have a legally valid marriage and they did not have a child.


The Appellant comments “After years of providing loving care to my partner, without acknowledgement or support from their family or the State, I was left unsupported by the DWP at a time when I most needed it. In effect, my grief is viewed as worthless in the eyes of the State”.


The Appellant is represented by our Jeremy Ogilvie-Harris and has instructed Stephen Cottle and Desmond Rutledge of Garden Court Chambers as counsel, all acting on a pro bono basis.


The Appellant’s grounds of appeal are:

  1. The exclusion of cohabiting partners without children from claiming bereavement benefit is directly discriminatory against bereaved cohabitees contrary to Article 1 Protocol 1 and / or Article 8 and Article 14 ECHR.
  2. The exclusion is indirectly discriminatory against women, contrary to Article 14 ECHR, as they are statistically more likely to be cohabitees who have survived their long-term partners.
  3. The exclusion is indirectly discriminatory on grounds of sexual orientation as she did not have the option of entering into a civil partnership at the time the claim was made in 2015 (see Steinfeld and Keidan).

The Appellant has submitted evidence showing the disproportionate impact on cohabitees who are excluded provided by national bereavement charities: WAY Widowed and Young, the National Bereavement Alliance, Cruse Bereavement Care, Marie Curie, MND Association, Quaker Social Action, Sue Ryder and Down to Earth.


If the challenge is successful, it is expected to potentially help hundreds of Hackney residents who have faced bereavement and even more people around the UK.