Proposal for a draft Bereavement Benefits (Remedial) Order 2021

We welcome the Government’s action in proposing the Remedial Order to amend the Social Security Contributions and Benefits Act 1992, the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the Pensions Act 2014 and the Pensions Act (Northern Ireland) 2015 to remedy their incompatibility with the Convention prohibition on discrimination in the enjoyment of other Convention rights as guaranteed by Article 14 ECHR. (Paragraph 5) Procedural requirements

Overall, we consider that the procedural requirements for the making of a Remedial Order have been met. (Paragraph 38) Remedying the incompatibility

Subject to one exception, we are satisfied that the proposed changes would address the identified incompatibilities with Article 14 ECHR, as they would essentially result in cohabiting partners with children being treated in the same way as married couples and civil partners with children. The one exception is that the Remedial Order would appear to not extend WPA fully to pregnant cohabiting partners. The proposed draft Remedial Order must be amended to ensure that pregnant cohabiting partners would be treated the same as pregnant spouses and civil partners.

While allowing just one person to be entitled to claim WPA or higher rate BSP in respect of death is consistent with the current approach, it is liable to create unfairness where there are two or more potentially eligible claimants. The proposed draft Remedial Order should be amended so that, where there is more than one person who satisfies the conditions of entitlement for WPA or higher rate BSP, the award should be split between them.

We welcome the proposal to give retrospective effect to the changes introduced to remedy the incompatibility with Article 14. We consider that the apparent effect of the Remedial Order as drafted, providing full payments in respect of deaths occurring between the commencement of BSP on 6 April 2017 and 30 August 2018, is preferable to the pro-rata payments that appear to have been intended. It would provide a retrospective remedy for all those who have been the subject of discriminatory treatment in relation to higher rate BSP. While not necessary to ensure the incompatibility is remedied, we also consider that 9 February 2016, the date that the High Court of Northern Ireland handed down its declaration of incompatibility in McLaughlin, could be an alternative date from which the amendments made by the Remedial Order should be treated as having effect. Alternatively, the DWP and the Northern Ireland Department for Communities might consider establishing a scheme to provide ex gratia payments to past victims of discrimination. (Paragraph 59) 26 Proposal for a draft Bereavement Benefits (Remedial) Order 2021

Applicants for WPA or higher rate BSP who have already had their claims refused, including those who have unsuccessfully appealed against that refusal, may not be able to obtain the full benefit they are intended to receive. Consequential amendments should be made to the Remedial Order to ensure that individuals are not prevented from benefiting from it as a result of them having previously had claims refused. (Paragraph 68) Other matters arising

While the concept of living together “as if” married (or in a civil partnership) has been recognised in law for many years (see, for example the Rent Act 1977, as amended in 1988) we recommend that the Government should move away from the marriage analogy as a way of defining cohabitation. We would prefer the form of words recommended by the Law Commission in a similar context in 2007: “living as a couple in a joint household. The Government should also consider more substantial reform by making children directly eligible for the bereavement benefits designed to support them.

We consider that there is a real risk the legislation governing BSP will remain incompatible with Article 14 ECHR, as read with Article 8 and Article 1 of the First Protocol, as it continues to discriminate between partners without children who are and are not in legal unions.

It would be unacceptable if payments made to remedy past discrimination were rendered ineffective as a result of reductions caused by taxation or diminution of benefits. We advise that the Government should consider carefully and be clear about the implications of the Remedial Order for taxation, tax credits and Universal Credit, ensuring that those who would receive retrospective payments under the Remedial Order are not disadvantaged.

We recommend the Government carries out an effective publicity campaign to ensure that those who become eligible for WPA or higher rate BSP as a result of the Remedial Order are made aware of this. (Paragraph 81) Proposal for a draft Bereavement Benefits (Remedial) Order 2021 27 Declaration of interests Lord Brabazon of Tara No relevant interests to declare Lord Dubs No relevant interests to declare Lord Henley No relevant interests to declare Baroness Ludford No relevant interests to declare Baroness Massey of Darwen No relevant interests to declare Lord Singh of Wimbledon No relevant interests to declare 28 Proposal for a draft Bereavement Benefits (Remedial) Order 2021

We welcome the Government’s action in laying this draft Remedial Order to amend the Social Security Contributions and Benefits Act 1992, the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the Pensions Act 2014 and the Pensions Act (Northern Ireland) 2015 to remedy their incompatibility with the prohibition on discrimination in the enjoyment of other Convention rights as guaranteed by Article 14 of the European Convention on Human Rights. (Paragraph 5) Procedural requirements

We are satisfied that the Government has complied with the procedural requirement to summarise the representations it has received and to detail any changes that have been made to the draft Remedial Order as a result of those representations. We would, however, remind the Government that the obligation is to summarise all representations received, not merely those from the Joint Committee on Human Rights.

We have previously expressed our concern over the delay in remedying the discrimination in the provision of bereavement benefits recognised in the cases of McLaughlin and Jackson. We are extremely disappointed that it took the Government a further 11 months to respond to our report on its proposals and to lay the draft Remedial Order before Parliament.

We remain satisfied that the non-urgent procedure was appropriate. We accept the need for the non-urgent procedure to ensure there was an opportunity for representations to be made on the Government’s proposals. (Paragraph 38) Remedying the incompatibility

We welcome the amendments that the draft Remedial Order would make to the legislation governing Widowed Parents Allowance and higher rate Bereavement Support Payment. These amendments would address the key issue preventing this legislation being compatible with Convention rights by extending eligibility for Widowed Parents Allowance and higher rate Bereavement Support Payment to surviving cohabiting partners who are pregnant or who have children.

While we would prefer no prima facie eligible claimants to be left empty handed, we accept that splitting the benefit would not be consistent with usual practice and could produce unhelpful complexity into the system. We also recognise that the numbers of such claimants are likely to be very low. We do not consider that this approach prevents the draft Remedial Order being effective or us recommending its approval.

We are disappointed that the Government have rejected our suggestion that the Remedial Order should have retrospective effect from 9 February 2016 rather 24 Draft Bereavement Benefits (Remedial) Order 20222Second Report than 30 August 2018, because this means that many cohabiting partners who have suffered as a result of the discriminatory effect of the bereavement benefits system, including the claimant in McLaughlin, will not be provided with a remedy. We are also disappointed that our alternative suggestion of an ex-gratia scheme has not been taken up and would ask the Government to reconsider.

We are disappointed that the draft Remedial Order will only allow for Bereavement Support Payment in respect of entitlement after 30 August 2018, having made clear that we considered the more generous approach to be preferable. Nevertheless, we accept that this is consistent with the Government’s stated intention.

It would have been helpful if the Government had explained why it does not consider that the finality of tribunal decisions and decisions made by the Secretary of State will operate to prevent individuals who have already had claims refused from accessing bereavement benefits once the Remedial Order comes into effect. Such an explanation would have provided reassurance that the rejection of our recommendation will not leave otherwise eligible claimants without access to Widowed Parents Allowance or higher rate Bereavement Support Payments, perpetuating the discriminatory treatment the draft Remedial Order is designed to remedy. We recommend that the Government publishes its reasoning as soon as possible.

Nevertheless, we acknowledge the explicit confirmation in the Government’s response to our Committee that the benefits will be administered so as not to exclude claimants who have previously been refused on the basis of being cohabitees rather than in a legal union with the deceased. We trust that the Secretary of State will ensure that this commitment is met.

We are glad the Government accepted our recommendation to consider carefully the implications of the Remedial Order for taxation, tax credits and Universal Credit, ensuring that those who receive retrospective payments as a result of the Remedial Order are not disadvantaged. We welcome the confirmation that retrospective Widowed Parent’s Allowance payments will be treated as capital and disregarded for 12 months, and will not count towards the Benefit Cap. In the same spirit, we are confident the Government will reflect on the way in which deprivation of capital provisions are applied to recipients of retrospective lump sum payments, and the treatment of those payments for the purposes of tax credits.

Our overall conclusion is that the draft Remedial Order adequately addresses the incompatibilities with Article 14 ECHR (the prohibition on discrimination) identified in the cases of McLaughlin and Jackson. We recommend that the draft Remedial Order is approved. (Paragraph 65) Other matters

We remain unconvinced by the definition of “cohabiting partner” used in the draft Remedial Order. We recognise, nevertheless, that changing this definition is a wider issue that may not be appropriate to address in a statutory instrument designed to remedy a specific human rights incompatibility. We would, however, encourage the Government to reflect on whether the definition of “cohabiting partner” used across the social security system remains appropriate. (Paragraph 71) Draft Bereavement Benefits (Remedial) Order 20222Second Report 25

We welcome the Government’s acceptance of our recommendation that it should carry out an effective publicity campaign, to ensure that those who become entitled to Widowed Parent’s Allowance or higher rate Bereavement Support Payment as a result of the Remedial Order are aware of this. We recommend that recipients are also carefully reminded that tax liabilities will arise. We recommend that recipients are also carefully reminded that tax liabilities will arise. Furthermore, the Government should compare the numbers of potentially eligible individuals who make claims for Widowed Parent’s Allowance and higher rate Bereavement Support Payment against projected figures. Should it appear that the opportunity to claim is not being taken up in adequate numbers, the Government should take further active steps to reach those individuals and ensure that the discriminatory effect of the current scheme is effectively remedied. (Paragraph 74) 26 Draft Bereavement Benefits (Remedial) Order 20222Second Report