Recommendation 5

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