[2025] UKUT 016 (AAC)

This appeal concerns the effect of The Bereavement Benefits (Remedial) Order 2023 (SI 2023/134) (the 2023 Order) which came into force on 9 February 2023. The 2023 Order was made to remedy the incompatibility with the Human Rights Act 1998 (HRA 1998) identified by the High Court (Holman J) in R (Jackson) v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin), [2020] 1 WLR 1441 and to enable claims for Bereavement Support Payment (BSP) by persons with dependent children who were cohabiting partners (not married or in a civil partnership) at the time of the death. The 2023 Order among other things amended retrospectively section 30 of the Pensions Act 2014 (PA 2014) in order to entitle cohabiting to partners with dependent children to BSP from 30 August 2018.

The appellant appeals against the First-tier Tribunal’s decision of 23 October 2023 striking out her appeal against the decision of the Secretary of State of 24 November 2022 that she was not entitled to BSP in respect of her partner’s death because she was not married to, or in a civil partnership with him, at the time of his death.

When considering whether or not to grant permission in this case, I was satisfied that the appeal was reasonably arguable as a matter of law, but noted that it was academic as far as the appellant is concerned. Sadly, the appellant died after commencing the appeal, and the appeal was in any event no longer of any financial consequence for her (or her estate) because she made a second (successful) claim for BSP following the coming into force of the 2023 Order as a result of which she was awarded BSP. However, having considered submissions from the parties, I decided that this was an exceptional case where it was appropriate to consider an appeal that had become academic for the particular appellant because I was persuaded that the issue raised in this appeal was potentially one of wider concern to other claimants.

However, I declined the Secretary of State’s invitation to list the case for an oral hearing as I was satisfied (and remain satisfied) that the case could fairly be determined on the papers.