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The Court of Appeal has upheld an Article 14 challenge to the ‘contribution condition’ for bereavement support payment (BSP) in the Pensions Act 2014.

BSP is a non-means tested contributory benefit designed to assist with the additional expenditure typically associated with bereavement. In a judgment handed down on 11 October 2023, the Court of Appeal agreed with the High Court (and the Northern Ireland Court of Appeal) that the contribution condition, which requires an applicant’s deceased spouse or civil partner to have actually paid a modest amount of national insurance contributions during their working life, violates Article 14 ECHR read with Article 1 of the First Protocol (A1P1), because it results in denying the benefit to a person whose deceased spouse or civil partner was unable to work (and therefore unable to pay national insurance contributions) throughout their working life due to disability. The Court of Appeal agreed that the Pensions Act should be read and given effect so that the contribution condition was to be treated as met if the deceased was unable to comply with it throughout their working life due to disability.

In so finding, the Court of Appeal had to grapple with the issue of what approach it should take to a decision of the Northern Ireland Court of Appeal on the same issue relating to materially identical social security legislation applicable to Northern Ireland. The Court of Appeal held that the approach taken in Abbott v Philbin [1960] 1 Ch 27 was correct, namely that the English Court of Appeal should follow decisions of an appellate court in Scotland on the interpretation of UK-wide revenue legislation unless there are “compelling reasons” not to do so. Applying that reasoning to the current case, the Court of Appeal found that it should follow the decision of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36, unless O’Donnell was “clearly wrong”, which it was not.

This case provides a rare example of a successful Article 14 challenge to primary legislation.

Catherine Callaghan KC represented the Claimant, Mr Daniel Jwanczuk, in the High Court and the Court of Appeal, leading Tom Royston from Garden Court North Chambers. Catherine and Tom have been instructed throughout by the Public Law Project.”

The judgment is available here.

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