[2025] UKUT 016 (AAC)

The appellant’s partner died on 4 November 2022. At that time, the appellant was cohabiting with her partner, but was not married to him or in a civil partnership with him. They had a dependent child.

On 24 November 2022 the appellant completed an online form claiming BSP. Her application was refused on 24 November 2022 on the basis that she was not married to, or in a civil partnership with, her deceased partner.

At that time, the effect of section 30(1) and (4)(a) of the PA 2014 was that a person was not entitled to a BSP in respect of a partner with whom they were cohabiting unless they were married to, or in a civil partnership with, the deceased at the time of death.

The appellant immediately on 24 November 2022 appealed to the First-tier Tribunal.

The First-tier Tribunal stayed the appeal and directed the respondent Secretary of State to carry out a Mandatory Reconsideration of the decision.

On 9 February 2023 the 2023 Order came into force extending entitlement to BSP to persons who were ‘merely’ cohabiting with their partners at the time of death. (The detail of the 2023 Order is dealt with further below.)

The Mandatory Reconsideration of the 24 November 2022 decision was carried out on 17 March 2023. The decision was not changed.

Also on 17 March 2023 the appellant submitted a second claim for BSP using the same online form as previously and including the same details.

On 14 April 2023 that second claim was granted.

The stay on the appellant’s appeal against the original decision was then lifted and the matter came before a District Tribunal Judge on the papers on 23 October 2023. The Judge struck the appeal out under rule 8(3)(c) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the FT Rules) on the ground that it stood no reasonable prospect of success because:

The decisions of the higher courts do not change the law as it was applied to a claim at the time. This means that an appeal under the old law cannot succeed. If a new claim is made, the DWP will decide entitlement to bereavement payment under the new law. This Tribunal cannot decide whether a new claim will succeed.

The appellant then appealed to the Upper Tribunal.