“30 Bereavement support payment (1) A person is entitled to a benefit called bereavement support payment if – (a) the person’s spouse, civil partner or cohabiting partner dies, (aa) … (b) the person is under pensionable age when the spouse, civil partner or cohabiting partner dies, (c) the person is ordinarily resident in Great Britain … when the spouse, civil partner or cohabiting partner dies, and (d) the contribution condition is met (see section 31). … (2) The Secretary of State must by regulations specify – (a) the rate of the benefit, and (b) the period for which it is payable. …” “31 Bereavement support payment: contribution condition and amendments (1) For the purposes of section 30(1)(d) the contribution condition is that, for at least one tax year during the deceased’s working life – (a) he or she actually paid Class 1 or Class 2 national insurance contributions, and (b) those contributions give rise to an earnings factor (or total earnings factors) equal to or greater than 25 times the lower earnings limit for the tax year. (2) For earnings factors, see sections 22 and 23 of theSocial Security Contributions and Benefits Act 1992 . (3) For the purposes of section 30(1)(d) the contribution condition is to be treated as met if the deceased was an employed earner and died as a result of – (a) a personal injury of the kind mentioned insection 94(1) of the Social Security Contributions and Benefits Act 1992 , or (b) a disease or personal injury of the kind mentioned in section 108(1) of that Act. (4) In this section the following expressions have the meaning given bysection 122(1) of the Social Security Contributions and Benefits Act 1992 – ‘employed earner’, ‘lower earnings limit’, ‘tax year’, and ‘working life’ …”
“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.”
“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 may impose a positive duty to treat individuals differently in certain situations … Thlimmenos v Greece … 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.”
“(1) ‘The court has established in its case law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of article 14.’ (2) ‘Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.’ (3) ‘Such a difference of treatment is 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 aim sought to be realised.’ (4) ‘The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.’”
“98. ... the policy in its application to those who through disability are unable to work throughout their working life is manifestly without reasonable foundation. It is just not reasonable to suggest that one can incentivise a severely disabled person to work if through their disability they cannot work. Alternatively, to put it another way, that is manifestly without reasonable foundation. Furthermore, one cannot make work pay if through disability the individual cannot work. There is no stigma attached to credits of national insurance if a person is disabled. No one is going to think worse of a disabled person who can never work if they do not do so and receive credits rather than making payments. The contributory principle for BSP is extremely modest and that extremely modest application of the principle is not undermined by an exception being made in relation to those who through disability cannot contribute throughout their working life. An exception would simply amount to recognition that those who cannot contribute should not be excluded. That does [not] undermine the close relationship between the contribution condition and employment merely recognising that the severely disabled are at a substantial disadvantage if they cannot work throughout their working life. It is entirely possible to make an exception without undermining the contributory principle… a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. That less intrusive measure was to create an exception for those never able to work through disability and therefore never able to pay Class 1 or Class 2 National Insurance Contributions. In answer to the fourth question, the severity of the measure’s effect on the associated rights of the persons whose deceased spouse or civil partner was never able to work through disability was clearly disproportionate to the likely benefits of the impugned measure.”
“8. Although there is no one benefit which would definitively prove a person could not have worked throughout their entire working life where a system check shows the deceased spouse or civil partner had continuous entitlement to Invalidity Benefit, Incapacity Benefit and/or Employment & Support Allowance throughout their working life the decision maker can allow the claim for Bereavement Support Payment on the basis that the contribution conditions are treated as met. Provided there are no gaps in entitlement to these benefits an award can be made without contacting the claimant or obtaining further evidence.”
“To the extent that it is clear that a particular issue before us was directly considered in O’Donnell our primary focus should be on whether a sufficiently compelling reason has been shown why we should not follow it, although if we have serious doubts about its correctness, albeit falling short of that standard, it will be appropriate for us to express them.”
“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 added]; • Those who had recently left full-time education.”
“Simplifying entitlement conditions 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.”
“In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence, clarity and predictability. Cross and Harris in their instructive Precedent in English Law, 4th ed (1991), p 11, rightly refer to the ‘highly centralised nature of the hierarchy’ of the courts of England and Wales, and the doctrine of precedent is a natural and necessary ingredient, or consequence, of that hierarchy.”
“The rules of precedent or stare decisis cognisable here are given by the common law. … They include refinements which teach where the edge of precedent is to be found, so that often the earlier decision can be distinguished. I need not go into those. The essence is that precedent confines the very power of the courts subject to it. It is not a rule of discretion or comity or anything of the kind. It is therefore of necessity a doctrine whose reach is limited to the jurisdiction in which the courts in question operate. The House of Lords is no exception; by statute its writ runs to three jurisdictions, and accordingly it binds the lower courts within each of those jurisdictions. Statute might also extend the scope of precedent, as was done by theEuropean Communities Act 1972 , part of whose effect is to give binding force over the national courts to decisions of the European Court of Justice (in matters within the latter’s proper competence). … But it is at least clear, and here is the point on this part of the case, that it would be a constitutional solecism of some magnitude to suggest that by force of the common law of precedent any court of England and Wales is in the strict sense bound by decisions of any court whose jurisdiction runs in Scotland only or – most assuredly – vice versa. Comity and practicality are another thing altogether. They exert a wholly legitimate pressure.”
“Where the provision is one which appears in a UK statute, and which has previously been interpreted by appellate courts in the other jurisdictions of the United Kingdom, this court will also treat those interpretations with great respect, since it is undesirable that there should be conflicting decisions on the interpretation of a provision which is intended to apply in the same way throughout the United Kingdom.”
“It is true that, although we are not technically bound by decisions in the coordinate English court, we have been in the habit, in adjudicating on questions as to which the law of the two countries is identical, to follow them. We hold that uniformity of decision is so desirable that it is better, even when we think the matter doubtful, to accept the authority of the English court, and leave error, if there be error, to be corrected by the tribunal whose judgment is final on both sides of the Channel [ie the House of Lords].”
“It has been long established that while this court is not technically bound by decisions of courts of corresponding jurisdiction in the rest of the United Kingdom it is customary for it to follow them to make for uniformity where the same statutory provision or rule of common law is to be applied … This is not to say that the court will follow blindly a decision that it considers to be erroneous.”
“… in construing a taxing statute which applies to England and Scotland alike, it is desirable to adopt a construction of statutory words which avoids differences of interpretation of a technical character such as are calculated to produce inequalities in taxation as between citizens of the two countries. Lord Halsbury LC affirmed this principle in Commissioners for Special Purposes of Income Tax vPemsel[1891] AC 531 , 548, when he adopted the canon of construction laid down by the Court of Session in Baird’s Trustees vLord Advocate (1888) 15 R 682, and quoted the general principle of common sense which Grose J laid down in a rating case (R vHogg (1787) 1 TR 721, 728): ‘an universal law … cannot receive different constructions in different towns.’ Lord Watson in Pemsel’s case[1891] AC 531 , 557, deduces from the Scottish decision of Lord Saltoun v Lord Advocate (1860) 3 Macq 659 the principle, which he there applies, that the Income Tax Act, 1842, must, if possible, be so interpreted as to make the incidence of its taxation the same in both countries.”
“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.”
“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.”
“Although the decision [of the Inner House] does not bind us as a matter of law, we consider that there is a compelling case for not departing from what has been acknowledged to be good practice, whereby the EAT – which has a Britain-wide jurisdiction – should ordinarily follow relevant decisions of higher courts within Great Britain, notwithstanding that the doctrine of precedent would not normally apply. Where, as here, the decision in question relates to a legislative protection that extends throughout Great Britain, and where there is no separate question as to the application of Scottish law, or the law of England and Wales, there is a legitimate public interest in consistency of approach. The fact that the issue raised by the present appeal has come before us by way of an appeal from an English ET is a matter of chance; as the case law makes clear, this is an issue that has arisen (not infrequently) in cases both north and south of the England/Scotland border. In these circumstances, we consider that the appropriate course is to approach this appeal on the basis that the decision [of the Inner House] is binding upon us.”
“We are not bound by the doctrine of precedent to follow decisions of the Inner House of the Court of Session or the Court of Appeal in Northern Ireland, but where either of those courts has given a decision on the meaning of a statutory provision applicable throughout Great Britain or throughout the United Kingdom it is highly desirable that this court should follow the previous decision and leave it to the Supreme Court to resolve the difficulties. That principle was established in the tax case of Abbott v Philbin[1960] Ch 27 ;[1961] AC 352 as one to be adhered to in the absence of what Lord Evershed MR described as ‘compelling reasons’.”
“(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.”
“158. … In the light of that jurisprudence as it currently stands, it remains the position that a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation. Nevertheless, the intensity of the court's scrutiny can be influenced by a wide range of factors, depending on the circumstances of the particular case, as indeed it would be if the court were applying the domestic test of reasonableness rather than the Convention test of proportionality. In particular, very weighty reasons will usually have to be shown, and the intensity of review will usually be correspondingly high, if a difference in treatment on a ‘suspect’ ground is to be justified. … But other factors can sometimes lower the intensity of review even where a suspect ground is in issue … 161. It follows that in domestic cases, rather than trying to arrive at a precise definition of the ambit of the ‘manifestly without reasonable foundation’ formulation, it is more fruitful to focus on the question whether a wide margin of judgment is appropriate in the light of the circumstances of the case. The ordinary approach to proportionality gives appropriate weight to the judgment of the primary decision-maker: a degree of weight which will normally be substantial in fields such as economic and social policy, national security, penal policy, and matters raising sensitive moral or ethical issues. … 162. It is also important to bear in mind that almost any legislation is capable of challenge under article 14. Judges Pejchal and Wojtyczek observed in their partly dissenting opinion in JD [2020] HRLR 5, para 11: ‘Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.’ In practice, challenges to legislation on the ground of discrimination have become increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign. The favoured ground of challenge is usually article 14, because it is so easy to establish differential treatment of some category of persons, especially if the concept of indirect discrimination is given a wide scope. Since the principle of proportionality confers on the courts a very broad discretionary power, such cases present a risk of undue interference by the courts in the sphere of political choices. That risk can only be avoided if the courts apply the principle in a manner which respects the boundaries between legality and the political process. As Judges Pejchal and Wojtyczek commented, at para 10: ‘Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.’” ‘Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.’ ‘Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.’”
“The contribution condition seeks to give effect to the principle that the Government should encourage and reward work through the benefit system: that work should pay. The Claimant’s claim undermines this essential tenet of Government policy. This isdespite the fact that there have always been benefits aimed at different groups of individuals and successive Parliaments since the Beveridge Report have repeatedly decided that some benefits are based on contributions, and some are not. … The contribution principle is a central policy principle. It ensures that individuals are encouraged to work and that the stigma of receiving a benefit is reduced. It also ensures that those who pay NI Contributions through working, even where working is challenging, are rewarded. Dilution of the contribution principle, by adding an exception to the contribution requirement will undermine the principle that work is rewarded in the benefit system. This will also increase the stigma experienced by those in receipt of benefits.”
“In this context it is worth again repeating that BSP is a benefit which is intended to provide short term support to a claimant who has been bereaved (not support disabled individuals or their partners). The support it provides is based on the work of the deceased. 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.”