[2025] UKUT 016 (AAC)

Prior to 9 February 2023, section 30(1)(a) of the PA 2014 provided that a person was entitled to BSP if “the person’s spouse or civil partner dies”.

By regulation 19(2) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) (the 1987 Regulations), the prescribed time for claiming BSP was “three months beginning with any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned”.

By regulation 19(3BA) the prescribed time for claiming the rate set out in regulation 3(2) or (5) of the Bereavement Support Payment Regulations 2017 (SI 2017/410) (the 2017 Regulations) was “12 months beginning with that date of death” (i.e. the death of the spouse or civil partner).

By regulation 2 of the 2017 Regulations, the period for which BSP could be claimed was as follows:-

2.

—(1) The period for which bereavement support payment is payable is as follows.

(2)

The period starts—

(a)

on the date the person’s spouse or civil partner died, where the person claims the payment three months or less after that date; or

(b)

at the beginning of the period of three months preceding the date the person claims the payment, where the person claims the payment—

(i)

more than three months after the date the person’s spouse or civil partner died; and

(ii)

no more than three months after the date the period finishes under paragraph (3).

(3)

The period finishes at the end of the period of 18 months beginning with the day after the date the person’s spouse or civil partner died.

In the case of In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 4, the Supreme Court made a declaration of incompatibility under section 4 of the HRA 1998 in relation to section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 on the basis that, insofar as it precluded any entitlement to widowed parent’s allowance by a surviving unmarried partner, it was incompatible with Article 14, in conjunction with Article 8, of the European Convention on Human Rights (ECHR).

In the case of Jackson and others v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin), the High Court (Holman J) made a declaration of incompatibility in relation to section 30(4)(a) read with section 30(1) of the Pensions Act 2014 on the basis that, insofar as it empowered the Secretary of State to make regulations that bereavement support payment be paid at a higher rate in the case of a person with dependent children only if they are a spouse or civil partner of the deceased, it was incompatible with Article 14, in conjunction with Article 8, of the ECHR.

The 2023 Order was made on 8 February 2023 to remediate the incompatibilities identified in McLaughlin and Jackson. By virtue of article 1(2) the 2023 Order came into force on 9 February 2023. By virtue of article 1(3) the amendments made by articles 4 to 9 of the Order “are to be treated as having had effect from 30^th August 2018” (i.e. the date of the decision of the Supreme Court in McLaughlin).

By article 4(2)(a) of the 2023 Order, section 30(1)(a) of the PA 2014 was amended to provide that a person is entitled to BSP if “the person’s spouse, civil partner or cohabiting partner dies”. By article 4(2)(b), for the purposes of that section “two persons are cohabiting partners if they are not married to, or civil partners of, each other but are living together as if they were married or civil partners”. There was also power to make further provision by regulations as to the definition of cohabiting partner.

By article 3, sub-paragraph (4), sub-paragraphs (5) and (6) of that article are stated to apply “where, apart from satisfying the condition of making a claim, the claimant is entitled to bereavement support payment as a result of this Order in relation to a death which occurred before the day this Order comes into force”. Sub-paragraph (5) then provides that regulation 19(2) of the 1987 Regulations “is to be read in relation to that entitlement as follows … the words from “three months” to the end of the paragraph are to be read as “21 months beginning with the day after the day the Bereavement Benefits (Remedial) Order 2023 comes into force”, while regulation 19(3BA) is to be “read as though the following was substituted for it … the date on which the claimant’s cohabiting partner (within the meaning in section 30(6B) of the Pensions Act 2014) died” and “that date of death” is to be read as “the day the Bereavement Benefits (Remedial) Order 2023 comes into force”.

Article 6 made provision amending regulation 2 of the 2017 Regulations to include the following:

(4)

Paragraphs (5) and (6) apply where the person is entitled to bereavement support payment—

(a)

as a result of the amendments made by the 2023 Remedial Order, and

(b)

as a result of the death of their cohabiting partner occurring on or after 30th August 2018 and before the RO commencement day.

(5)

The period starts—

(a)

with the RO commencement day, where the person claims the payment 12 months or less after that date; or

(b)

at the beginning of the period of three months preceding the date the person claims the payment, where the person claims the payment—

(i)

more than 12 months after the RO commencement day; and

(ii)

no more than three months after the date the period finishes under paragraph (6).

(6)

The period finishes at the end of the period of 18 months beginning with the RO commencement day.

(7)

Paragraphs (8) and (9) apply where the person is entitled to bereavement support payment—

(a)

as a result of the amendments made by the 2023 Remedial Order, and

(b)

as a result of the death of their cohabiting partner occurring on or after 6th April 2017 and before 30th August 2018.

(8)

The period starts with the RO commencement day.

(9)

The period finishes—

(a)

at the end of the period of W months beginning with the RO commencement day, where the person claims the payment 12 months or less after the RO commencement day; and

(b)

at the end of—

(i)

the period described in sub-paragraph (a); or

(ii)

if shorter, the period of X months beginning with the RO commencement day,

where the person claims the payment more than 12 months after but no more than 21 months after the RO commencement day.

(10)

For the purposes of paragraph (9)—

“W months” means the number of months which is 18 less Y;

“X months” means the number of months which is 21 less Z.

(11)

For the purposes of paragraph (10)—

“Y” is the number of monthly recurrences of the day of the month on which the person’s cohabiting partner died which occur during the period beginning with the day after the date of the cohabiting partner’s death and ending with 29th August 2018;

“Z” is the number of monthly recurrences of the day of the month on which the RO commencement day occurs during the period beginning with the day after the RO commencement day and ending with the date on which the person claims the payment.

(12)

In paragraph (11)—

(a)

for the purposes of the definition of “Y”—

(i)

paragraph (7) of regulation 3 applies as if the words “for the purposes of paragraphs (1) and (4)” were omitted, and

(ii)

paragraph (8) of regulation 3 applies as if the words “for those purposes” were omitted;

(b)

for the purposes of the definition of “Z”—

(i)

where the 2023 Remedial Order comes into force on the 31st day of a month, the monthly recurrence of the RO commencement day is to be treated as falling on the last day of the month;

(ii)

where the 2023 Remedial Order comes into force on the 29th or 30th day of a month, the monthly recurrence of the RO commencement day in February is to be treated as falling on the last day of February.

(13)

In paragraphs (4) to (12)—

“the 2023 Remedial Order” means the Bereavement Benefits (Remedial) Order 2023; and

“the RO commencement day” means the day on which the 2023 Remedial Order comes into force.”.