In the recent Supreme Court case In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) ( UKSC 48), it was held by a majority of four to one that denying an unmarried mother the Widowed Parent’s Allowance was illegal and breached her children’s rights.
Ms McLaughlin's deceased partner, Mr Adams, died from cancer in January 2014. The couple had been partners for 23 years. Ms McLaughlin was refused the Bereavement Payment and the Widowed Parent’s Allowance because herself and Mr Adams were neither married nor in a civil partnership.
Lady Hale, Lord Mance, Lord Kerr, Lord Hodge and Lady Black held that the Northern Ireland Department for Communities’ refusal to pay £117 benefits a week on the grounds that Ms McLaughlin's children were born out of wedlock was a breach of human rights and discriminated against the children.
Lady Hale stated:
“It is difficult indeed to see the justification for denying people and their children benefits, or paying them at a lower rate of benefit, simply because the adults are not married to one another. Their needs, and more importantly their children’s needs are the same… Is it a proportionate means of achieving the legitimate aim of privileging marriage to deny Ms McLaughlin and her children the benefit of Mr Adams’ contributions because they were not married to one another? In my view, the answer is manifestly ‘no’.”[38-39]
Unmarried couples are not unusual in this day and age. According to the Office for National Statistics (ONS), in 1996 there were 1.5 million cohabiting partners in the UK. In 2016 there was a sharp increase to 3.3 million (ONS report of 13 September 2017). These cohabitees do not have the same legal and financial rights and protections as married couples or those in civil partnerships.
In April 2017 the Widowed Parent’s Allowance was replaced with the Bereavement Support Payment. The Bereavement Support Payment is a state welfare benefit available to those whose spouse or civil partner has died, in the hope it can alleviate some of the financial strain. Cohabiting parents are ineligible for the new or previous benefit.
One might be led to believe that the recent Supreme Court case entitles cohabiting partners to the new Bereavement Support Payment. Unfortunately, until the legislation has been updated, Parliament is sovereign. However, such strong words from Lady Hale, the president of the Supreme Court, are an effort to compel the government to rejuvenate its policy to meet the modern public’s needs and to put the interests of children born out of wedlock first.