Eighth Report - Proposal for a draft Bereavement Benefits (Remedial) Order 2021: discrimination against cohabiting partners

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