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The Court of Appeal (Underhill (Vice-President), Macur and Moylan LJJ) has recently handed down its decision in this matter, giving detailed guidance on the interplay between polygamous marriage and bereavement benefits under social security legislation.

The Claimant was the sole surviving spouse of a polygamous marriage. Her marriage was inadvertently polygamous in that, at the time of celebration, both she and her late husband mistakenly believed that he had divorced his first wife. While her marriage was actually polygamous, the Claimant and her husband had in fact lived monogamously at all times since her arrival in the UK and, at the date of his death, she was the only surviving spouse.

Throughout his time in the UK, the Claimant’s late husband made the necessary national insurance contributions and was eligible for social security. Despite that, on his death, the Claimant was denied the bereavement benefits that were then ordinarily payable to widowed parents, namely bereavement payment (“BP”) and widowed parent’s allowance (“WPA”), because of the polygamous status of her marriage. 

The Claimant successfully appealed that decision (NA v Secretary of State for Work and Pensions [2019] 1 WLR 6321). Upper Tribunal Judge Wikeley, sitting in the Upper Tribunal (Administrative Appeals Chamber), upheld the Claimant’s challenge, finding (i) that the decision was discriminatory under the ECHR, and (ii) that the relevant secondary legislation - the Social Security and Family Allowances (Polygamous Marriages) Regulations 1975 (the “1975 Regulations”) - were to be read compatibly with Article 14 of the Convention under s.3 of the Human Rights Act 1998. The SSWP appealed the decision. 

The Court of Appeal allowed the SSWP’s appeal, albeit with each Judge giving different reasons for the decision. As the Judgment records (§192), at the conclusion of the hearing, the Court was “inclined to accept [the] submission that the 1975 Regulations were applicable to a void marriage”, such as the Claimant’s marriage. Nine months later, however, at the date of Judgment, the Court concluded that the Claimant was not entitled to bereavement benefits under the 1975 Regulations, where her marriage was void under English law, and that the 1975 Regulations, properly interpreted, did not breach her rights under Article 14 of the Convention (as read with A1P1). The declaration of incompatibility that had already been made in respect of WPA in In re McLaughlin [2018] UKSC 48, however, was equally applicable to that aspect of the Claimant’s challenge. 

In reaching his decision, Underhill LJ noted that he had “not found the case easy” (§247) and that he had initially been attracted to the “straightforward argument that the effect of regulation 1 of the 1975 Regulation was that all that was necessary… was that the polygamous marriage in question was valid according to the law under which it was celebrated” (in this case, Pakistan, §248). In the end, however, his Lordship was “persuaded by Moylan LJ’s clear and painstaking analysis of the legislative history”, which ran to nearly 60 pages. 

The decision is available here.

Celia Rooney acted as sole counsel for the Claimant in both the Upper Tribunal and the Court of Appeal.

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