Daniel Richard Jwanczuk v Secretary of State for Work and Pensions
[2023] EWCA Civ 1156
Margaret Kelly v Secretary of State for Work and Pensions
5 June 2024
[2024] EWCA Civ 613
Court of Appeal
Ms Kelly was denied bereavement benefits because she wasn't married or in a civil partnership, which was previously illegal for heterosexual couples. The court said this wasn't illegal discrimination because the underlying problem (the ban on heterosexual civil partnerships) had already been fixed. Even if it were discrimination, the court wouldn't make a new ruling because Parliament already addressed the broader issue, choosing not to make anyone retroactively eligible for the benefits.
Key Facts
- •Ms Kelly's claim for bereavement benefits was refused because she was not married or in a civil partnership to her deceased partner.
- •The refusal occurred before the legislation allowing opposite-sex civil partnerships came into effect.
- •Ms Kelly argued that the relevant sections of the Social Security Contributions and Benefits Act 1992 were incompatible with her Convention rights under Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) or Article 1 of Protocol 1 (protection of property).
- •Sections 36 and 39B of the 1992 Act, though largely repealed, remained in force for limited purposes due to transitional provisions.
- •The Upper Tribunal (UT) found discrimination but lacked the power to issue a declaration of incompatibility.
Legal Principles
Article 14 ECHR prohibits discrimination in the enjoyment of other Convention rights.
European Convention on Human Rights
Section 4(1) of the Human Rights Act 1998 allows courts to make declarations of incompatibility if a provision of primary legislation is incompatible with Convention rights.
Human Rights Act 1998
A declaration of incompatibility does not affect the validity or enforceability of the legislation (section 4(6) HRA).
Human Rights Act 1998
The court must consider whether there is an analogous situation and whether the difference in treatment is justified (Steinfeld principles).
Steinfeld v Secretary of State for International Development [2018] UKSC 32
Article 13 ECHR guarantees the right to an effective remedy. The HRA provides a domestic remedial scheme, ultimately leaving the extent of remedy to Parliament (Brown v Stott, Re S).
Human Rights Act 1998, Brown v Stott [2003] 1 AC 681, Re S (Minors) [2002] UKHL 10
Outcomes
Appeal dismissed.
The court found that the difference in treatment between Ms Kelly and her proposed comparators was not due to discrimination on the grounds of sexual orientation, but rather due to their different circumstances. Even if there were discrimination, a declaration of incompatibility would not be appropriate given the existing remedy in Steinfeld and the limited application of the challenged sections.
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