Bereavement Benefits: Proposal for implementation of the McLaughlin (2018) and Jackson (2020) judgments
A draft of a proposed remedial order to extend eligibility to Widowed Parent’s Allowance and Bereavement Support Payment to surviving cohabitees with dependent children following the McLaughlin (2018) and Jackson (2020) judgments.
Documents
Details
This draft proposal for a remedial order concerns 2 bereavement benefits, Widowed Parent’s Allowance (WPA) and its successor, Bereavement Support Payment (BSP). These benefits can currently only be paid to those who were married or in a civil partnership with the deceased at the date of death.
WPA was introduced in 2001 and is payable to working age people who were bereaved before 6 April 2017 and were entitled to Child Benefit (or pregnant) on the date of death. BSP was introduced on 6 April 2017 and supports bereaved working age people with the immediate costs associated with the death of their spouse or civil partner. Those without dependent children on the date of death receive a lump sum of £2,500 followed by up to 18 monthly instalments of £100 (standard rate). Those with dependent children receive a lump sum of £3,500 followed by up to 18 monthly payments of £350 (higher rate).
On 30 August 2018, in the McLaughlin case, the Supreme Court ruled the primary legislation governing WPA to be incompatible with the European Convention on Human Rights (ECHR). On 7 February 2020, in the Jackson case, the High Court similarly ruled that the primary legislation governing BSP is also incompatible with the ECHR. In both cases the courts found that restricting eligibility to people in a legal union (and thus excluding cohabitees) unfairly discriminates between children on the grounds of the legal status of their parents’ relationship.
As a result of these cases, this draft order proposes that eligibility for these benefits should be extended to surviving cohabitees with dependent children. This draft proposes that these changes will apply from 30 August 2018 (the date of the first court judgment). Under this proposed draft, some claimants will be entitled to retrospective payments.
Further details are set out in the draft Explanatory Memorandum attached. A copy of the draft order is also attached. The public may send comments about the proposed remedial order to the Department for Work and Pensions at the following address cfd.correspondence@dwp.gov.uk.
There is a period of 60 days to provide comments, but that 60 days does not include any period when both Houses of Parliament are in recess for more than 4 days. Parliament has published the dates it expects to be in recess. However, Parliament may choose to change those dates. Based on Parliament’s expected recess dates, the deadline for comments is Friday 12 November 2021. Any comments received after that date would be outside the 60 day period. It is important to note that this 12 November deadline might change – it could be brought forward or back depending on when Parliament is in recess.
Update
The 60 day period to provide comments on the draft order has now concluded and representations made during this period are currently being reviewed. A further update will follow in due course.
Updates to this page
Last updated 23 December 2021 + show all updates
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Added an update: The 60 day period to provide comments on the draft order has now concluded and representations made during this period are currently being reviewed.
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Changed deadline for comments from 13 November 2021 to 12 November 2021.
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First published.