“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.”
“… [A]rticle 14 may impose a positive duty to treat individuals differently in certain situations. … Thlimmenos v Greece31 EHRR 15 … illustrates the nature of the discrimination in such cases. The applicant had received a criminal conviction as a result of his refusal, for religious reasons, to wear a military uniform. He was refused admission to the profession of chartered accountant because he had been convicted of a serious crime. Since his conviction did not imply any dishonesty or moral turpitude which might render a person unsuitable to enter the profession, the court held that ‘there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a felony’ (para 47). The discrimination lay in not introducing an exception to a general rule.”
“(i) Does the subject matter of the complaint fall within the ambit of one of the substantive Convention rights? (ii) Does the ground upon which the complainants have been treated differently from others constitute a ‘status’? (iii) Have they been treated differently from other people not sharing that status who are similarly situated or, alternatively, have they been treated in the same way as other people not sharing that status whose situation is relevantly different from theirs? (iv) Does that difference or similarity in treatment have an objective and reasonable justification, in other words, does it pursue a legitimate aim and do the means employed bear ‘a reasonable relationship of proportionality’ to the aims sought to be realised (see Stec v United Kingdom(2006) 43 EHRR 47 , para 51)?”
“The deceased who as a result of disability could not work and could never meet the contribution condition was treated in exactly the same way as an individual who could work and who could meet the contribution condition but did not do so. This means that the appellant and his children have been treated in the same way as others whose situation was significantly different by reason of the disability of the deceased. The 2015 Act has not differentiated between persons in significantly different situations and there has been a failure to treat differently persons whose situations are significantly different. The discrimination is by comparison to non-disabled persons.”
“For the purposes of section 29(1)(d) the contribution condition is to be treated as met if the deceased was unable to comply with section 30(1) throughout her working life due to disability.”
“I am satisfied that we are not obliged to follow decisions of the Northern Ireland Court of Appeal, but we must accord them the greatest respect. Where the decision relates to a statutory requirement which applies or which is the same as that which applies in England and Wales, then we ought to follow that Court in order to prevent the wholly undesirable situation arising of identically worded legislation on the other side of the Irish Sea (or the other side of the Tweed) being applied in inconsistent ways. The same approach as we adopt for cases of the Court of Session in Scotland should be followed in the case of Northern Ireland.”
“Human rights should if possible have the same content throughout the UK. If O’Donnell is not distinguishable, I would not depart from it unless persuaded that is clearly wrong, which I would find only with great diffidence.”
“I accept Mr Sheldon’s submission that I have to consider the arguments afresh. The NICA’s decision, persuasive as it is, does not formally bind this court. If O’Donnell is wrongly decided, Mr O’Donnell got a windfall and the NI BSP guidance [i.e. what I have called the post-O’Donnell Guidance] is too generous. Even if this case is on all fours with O’Donnell, it would not be right to decide this case only on the basis that O’Donnell stands as authority against the SoS. That said, to the extent that I agree with the NICA’s reasoning, I need not say much more than that I do.”
“95. My decision means comity between courts of the UK jurisdictions is preserved and that the human rights at issue in this case have the same content in England and Wales as in Northern Ireland. I do not accept that the two cases have proceeded on different evidence. I am confident from a reading of O’Donnell and comparing it to the evidence of departmental and parliamentary procedure before me in this case (aided by Ms Callaghan’s submissions in reply) that O’Donnell and this case are being decided on, materially, the same evidence. 96. The SoS was in a position to demonstrate, if she could, that the evidence was different, but all indications are that it was not. It can be said with confidence that the facts are, essentially, on all fours in the two cases.…”
“I ask myself, therefore, having expressed such doubts as I have, with all respect to the judges in Scotland, ought this court now to answer those two questions in a precisely opposite sense? It is, of course, quite true that we in this court are not bound to follow the decisions of the Court of Session, but the Income Tax Act and the relevant Finance Acts apply indifferently both north and south of the border, and if we were to decide those questions in a sense diametrically opposite to the sense which appealed to the Scottish judges, we should lay down a law for England in respect of this not unimportant matter which would be completely opposite to the law which was applied, on exactly the same statutory provisions, north of the border. I cannot think that that is right. In a case of a revenue statute of this kind it is the duty of this court, unless there are compelling reasons to the contrary, to say, expressing such doubts as we feel we ought to do, that we should follow the Scottish decision.”
“… the Court of Appeal were constrained to decide this case in favour of the Crown in deference to the decision of the Court of Session in Forbes. I agree that the two cases are not in any material respect distinguishable and think that they took the proper course in following it.”
“In the present case the Court of Appeal, though not bound to do so, very properly followed the decision of the Court of Session … I say very properly because it is undesirable that there should be conflicting decisions on Revenue matters in Scotland and England.”
“Under the NIA [theNorthern Ireland Act 1988 ] social security and child maintenance are both ‘transferred matters’ and are the full responsibility of the devolved Government. However section 87 NIA requires the Secretary of State with responsibility for social security and the equivalent Northern Ireland Minister to consult each other with a view to securing single systems of social security, child support and pensions for the United Kingdom. This provision is the basis for Northern Ireland maintaining parity with the UK in respect of social security, child support and pensions. Parity is not inflexible and there is scope for the devolved government in NI taking a divergent course. However there are both practical issues and funding consequences. The practical issue is that Northern Ireland is dependent on the Department for Work and Pensions computer systems. At an operational level, the social security systems in Great Britain and Northern Ireland have developed in parallel, and virtually all the social security benefits paid in Northern Ireland are processed on IT systems provided and operated by the Department for Work and Pensions. Any divergence from this would incur modification costs which could be substantial. Northern Ireland could not afford to create and maintain its own IT system; nor, given parity, would such an approach represent value for money. There would also be financial implications for the devolved administration of breaking ‘parity’ with the rest of the UK if this resulted in increased expenditure.”
“Where the exact point has been raised by a special case, and fully argued, and decided by an unanimous judgment of the Court of Session, and where the question is simply one that turns upon the construction of a statute which extends to Scotland as well as to England, I think my duty as a judge of first instance is to follow that decision, leaving the parties, if so advised, to have it reviewed elsewhere.”
“64. The first issue on this appeal is whether there is a relevant ‘status’. Speaking for myself, I was attracted at one time during the hearing to the possibility that the relevant status is a severely disabled person who needs hospital treatment and has a deputy appointed by the Court of Protection. [Counsel for the claimant], however, was not prepared to accept that that was the relevant status. 65. I have reached the conclusion that the Judge cannot be criticised for reaching the conclusion which he did on the question of status. He was right to observe that the question of capacity as such is not a status. First, the scheme of the 2005 Act was designed to move away from a status-based approach to a functional approach, in other words to focus on particular decisions at a particular time. Secondly, there needs to be reasonable certainty: a person’s capacity may change from time to time and may do so quickly. That is not a sound foundation for the ‘status’ required by Article 14.”
“I agree with Singh LJ (see para. 65) that there are good reasons of principle and practicality why decision-making capacity does not provide a sound foundation for an Article 14 status. In my view, status is likely to be found in the disability itself, and not in the separate matter of capacity, and that is the conclusion to be reached in the present case.”
“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”
“It is the deceased’s NI Contributions gained through working which give entitlement to the benefit. That is the very purpose and structure of the benefit and is part of the ‘insurance’ aspect of the benefit system, in that in order to obtain the benefit you must first contribute.”
“[T]he Government also sought to ensure greater certainty in understanding entitlement to benefits. Greater certainty means that individuals understand their entitlement and are able to plan for their financial future. Introducing a measure which requires a complicated administrative judgement on a case-by-case basis, such as requiring the Government to assess whether a person has been disabled for their whole working life, introduces substantial uncertainty into the benefit system making it difficult for individuals to make prudent financial decisions and planning.”
“11. Generally, respondents supported the proposed simplifications to the contribution conditions for bereavement benefits. Some people did, however, express concerns about people who might not qualify under these conditions. Examples provided included: • Where women have supported the home and raised children rather than working, they may not have paid the appropriate amount of contributions so the husband/civil partner may not be eligible for bereavement payment should she die. In such cases, the surviving husband/civil partner may have to change his/her working patterns to fit around child care responsibilities; • Where individuals have had a history of illness preventing them from working and paying sufficient contribution conditions, such as young cancer patients [emphasis supplied]; • Where, due to economic circumstances, individuals have been unable to find work and pay sufficient contributions. 12. Many of these respondents suggested taking National Insurance credits, or the surviving spouse’s contribution record, into account when determining entitlement. Conversely, a small number of respondents criticised a perceived weakening of the link between contribution histories and the value of bereavement benefits, undermining the ‘something for something’ principle of the National Insurance system. Some people suggested that the link between the bereavement benefits they received and their late spouse or civil partner’s National Insurance contributions played an important role in their experience of the payments, avoiding the stigma associated with being ‘on benefits’.”
“Including credited National Insurance contributions when calculating entitlement would open access to bereavement benefits, meaning that only a very small number of people would not qualify for benefit ... Whilst this would improve access to the benefit, this would significantly undermine the contributory principle and would be inconsistent with the Government agenda of making work pay. On this basis, we do not recommend that this option is pursued.”
“There was broad support for the proposal to simplify National Insurance contributions, though some organisations qualified their support … Where concerns were raised about the proposed changes to contribution conditions, these mainly focused on the exclusion from coverage of those who had not paid enough National Insurance contributions, including: • Those who had supported the home rather than being in paid employment; • Those who had been unable to work due to illness or disability [emphasis supplied]; • Those who had recently left full-time education. Some respondents made suggestions for increasing coverage, including: • Taking National Insurance contributions of both the surviving and deceased spouse into account to determine entitlement; • Taking National Insurance credits into account to determine entitlement; • Making the benefit universal, i.e. paid to anyone in the event of the death of a spouse or civil partner. Conversely, some respondents described the consultation proposal as too generous, not adequately rewarding work, and not being faithful to the contributory principle.”
“The Government recognises the important role that the contributory principle plays in people’s experience of accessing benefits by creating a sense of entitlement that removes the stigma often associated with claiming means-tested benefits. Yet at the same time, bereavement benefits are paid in the event of the premature death of a working-age spouse or civil partner. Expecting a complete National Insurance record in such circumstances is clearly inappropriate. The Government is striking a balance between these two issues, whilst seeking to make contribution conditions easy to understand, by basing contribution conditions for the Bereavement Support Payment on the existing Bereavement Payment. This will mean that people will be entitled to receive the full payment as long as their late spouse or civil partner paid National Insurance contributions at 25 times the Lower Earnings Limit for any one year prior to their death. National Insurance credits and Class 3 National Insurance contributions will not count towards entitlement.”
“92. In order to justify what would otherwise be the discriminatory effect of a rule governing entitlement to welfare benefits, the respondent has first to put forward its reasons for having countenanced the adverse treatment. The adverse treatment which is to be justified is the exclusion from any entitlement to BSP of a spouse or civil partner and of their children when the deceased was never able to work due to disabilities. Once the respondent has put forward its reasons then we would propose to use the technique or tool of the Bank Mellat questions in order to answer the sole question as to whether the complainant has demonstrated that the reason or reasons were manifestly without reasonable foundation. 93. The respondent has not acknowledged the discriminatory effect and quite simply has put forward no reason for having countenanced the adverse treatment. In a discrimination case, what must be justified is the difference in treatment or in this reference the lack of difference in treatment and not merely the underlying policy. The factors relied on by [counsel] which can be summarised as (a) incentivising work (b) protecting the contributory principle and (c) simplifying the benefits system justify the underlying policy but they do not justify the failure to treat the severely disabled differently from those without disabilities. It is the failure to treat them differently that needs to be justified. There was no discussion prior to the 2015 Act of making an exception for those who could not work throughout their working life due to disabilities. This means that there was no justification at the time of the failure to make an exception for this category of disabled person. That is not conclusive but what is conclusive is that there has been no after the event attempt at justifying why such an exception could not be made. We consider that none of these reasons addresses the adverse treatment. The factors relied on by the respondent constitute explanations as to why the contribution condition is included in the legislation. They do not constitute justification for the discriminatory effect of the contribution condition when applied to spouses of people with severe disabilities who were never able to work throughout their working life. These factors explain the measure but they do not provide justification for the discriminatory effect of the measure.”
“92. Next, I gain only limited assistance from the NI BSP guidance, not considered in O’Donnell. Had I upheld the SoS’s arguments in favour of a simple bright line rule requiring actual payment of NICs, it would follow that the NI BSP guidance is inappropriate here in England. But if, as I consider, the NICA’s decision is correct, the NI BSP guidance still does not itself prove that the SoS’s concerns about complexity, delay and expense are wholly unfounded; only that they are not of enough weight to sustain the justification defence. 93. The next and related point is that I am not deciding whether and to what extent receipt of relevant state benefits is a valid proxy for inability to work. No doubt in many cases it will be, but each case ultimately turns on its own facts. I have not found it necessary or practicable to conduct an exhaustive analysis of all the relevant benefits in place at various times since 2014 and their historic predecessors. 94. The benefits legislation and case law does show that a person may be in receipt of what is now called employment and support allowance, founded broadly on an inability to work, yet may perform ‘exempt’ work to a limited extent without losing entitlement The reference to “exempt” work is to regulation 45 of the 2008 Regulations referred to at para. 58 above. . The materials do not, however, enable me to determine when, in individual cases, the deceased’s benefit records will themselves be enough to determine a surviving spouse’s BSP claim, and when they will not be. That is a matter for decision makers on the ground. … 97. I agree with the submission that the NICA ought not to have placed any weight on the breaches of the two relevant international conventions, the UNCRC and the UNCRPD. But I am far from convinced that the NICA’s conclusion was strongly influenced by its finding that the contribution condition in the PANI 2015 breached the Department’s obligations under those two conventions (of which one, the UNCRPD, is relevant in the present case). I accept Ms Callaghan’s submission that the observations on breach were obiter. 98. The fact that the PANI 2015 is subordinate legislation does not make any difference, in my judgment. The interpretative exercise required under section 3 of the Human Rights Act is available in the case of both primary and secondary legislation. The primary and secondary legislation are in materially the same terms. Any difference in the degree of deference to the legislature that is appropriate, is in my view theoretical rather than real because the PANI 2015 is an Act of the elected legislature, the Northern Ireland Assembly.”
“I do not accept that the section 3 interpretative remedy is off limits on the basis that to read in the suggested words would go against the grain of the legislation. There is already an exception in the case of disabling personal injury or disease during employment. Injury and disease are not dissimilar from congenital or other forms of disability. All involve impairment of bodily functions, which may make work impossible. The exception carved out by the NICA under section 3 does not go against the essentials of the legislation.”
“… (i) the ‘grain’ of the legislation was that it rewarded work, this was the case for the contribution condition and the exception under s.30(3)(a), and/or (ii) Kerr J failed to have regard to the fact that the exception for those with an industrial disease or disabling personal injury only applied to those who were working. As such the exception was not for those with ‘bodily impairments’, but rather for those who were working, but who, because of that work and the illness or injury they suffered as a result, were unable to make the contribution and died.”