Eighth Report - Draft Bereavement Benefits (Remedial) Order 2022: Second Report

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