10 August 2020
Summary of judgment - O'Donnell v Department for Communities
10 August 2020
COURT FINDS THAT PROVISIONS FOR THE DISABLED IN THE
PENSIONS ACT (NORTHERN IRELAND) 2015 ARE INADEQUATE
Summary of
Judgment
The Court of Appeal
today ruled that the provisions of sections 29 and 30(1)-(3) of the Pensions
Act (Northern Ireland) 2015 are incompatible with Article 14 ECHR read with
Article 8 of and/or Article 1 of the First Protocol to the Convention for the
Protection of Human Rights and Fundamental Freedoms.
The Court concluded that section 29(1)(d) of the
2015 Act should be read and given effect so that the national insurance
contribution condition for Bereavement Support Payment is to be treated as met
if the deceased was unable to comply with section 30(1) throughout her working
life due to disability. Reading and giving effect to the 2015 Act in this
manner means that it is compatible with Article 14 ECHR read in conjunction
with Article 8 and A1P1.
Introduction
A Social Security Appeal Tribunal (“the tribunal”)
referred a question to the Court of Appeal as to whether the provisions of
sections 29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 (“the
2015 Act”) are incompatible with Article 14 read with Article 8 of and/or
Article 1 of the First Protocol (“A1P1”) to the Convention for the Protection
of Human Rights and Fundamental Freedoms (“ECHR”).
The issue relating to incompatibility also raised a
devolution issue because a provision is outside the competence of the Northern
Ireland Assembly if it is incompatible with any Convention rights. The 2015 Act
is an Act of the Northern Ireland Assembly.
These incompatibility and devolution issues arose
because sections 29 and 30(1)-(3) of the 2015 Act impose a requirement of actual payment of Class 1 or Class 2
national insurance contributions by a deceased spouse or civil partner as one
of the conditions of the surviving spouse or civil partner being entitled to
Bereavement Support Payment (“BSP”).
Background
Mrs Pauline O’Donnell had been unable to work
throughout her working life due to severe congenital disabilities and therefore
could not and did not “pay” any Class 1 or Class 2 national insurance
contributions, although she was “credited” with contributions. She could have but did not make Class 3
(voluntary) contributions but even if she had these would not have met the
contribution condition for BSP. She died
on 31 July 2017.
The Department for Communities (“the respondent”)
declined the application for BSP made by her surviving spouse, Mr Michael
O’Donnell, (“the appellant”) on the basis that “your wife did not pay enough
National Insurance contributions.” The appellant appealed to the tribunal,
arguing that the contribution condition that Class 1 or Class 2 national
insurance contributions must have been “paid” by the deceased spouse or civil partner
were unjustifiable discriminatory treatment of the appellant and of their
children on account of the disability of Pauline O’Donnell in circumstances
where she could not work throughout her working life due to her disabilities
and therefore could not pay Class 1 or Class 2 national insurance
contributions. The appellant described this as “unlawful indirect associative
disability discrimination” contrary to Article 14 read with Article 8 of and/or
A1P1 to the ECHR.
The Referral
from the Tribunal and the question for the Court of Appeal
In accordance with Schedule 10 Paragraph 8 of the
Northern Ireland Act 1998 (“the NIA”) and Order 120 Rule 6 of the Rules of the
Court of Judicature (Northern Ireland) 1980, the tribunal adjourned the appeal
and referred to the Court of Appeal the following question:
“Are the provisions of
Sections 29 and 30(1)-(3) of the Pensions Act (NI) 2015 incompatible with
Articles 8, 14 and Protocol 1 Article 1 of the European Convention on Human
Rights, as provided by the First Schedule to the Human Rights Act 1998?”
The question is confined to
the facts of this reference which involves a deceased individual who, as a
result of disabilities, could not work throughout her working life and
therefore could not pay Class 1 or Class 2 national insurance
contributions.
The Appeal
The Article
14 questions
To resolve the question referred to the Court of
Appeal by the tribunal, the Court had to answer a series of questions as to whether or not there had been unjustifiable discrimination
contrary to Article 14. These questions were formulated by Lady Hale at
paragraph 136 in the case R (DA & DS)
v Secretary of State for Work and Pensions 2019 UKSC 21 as follows:
(i) Does the subject matter of the complaint fall
within the ambit of one of the substantive Convention rights?
(ii) Does the ground upon which the complainants
have been treated differently from others constitute a “status”?
(iii) Have they been treated differently from other
people not sharing that status who are similarly situated or, alternatively, have they been treated in the same way as
other people not sharing that status whose situation is relevantly different
from theirs [emphasis added]?
(iv) Does that difference or similarity in
treatment have an objective and reasonable justification, in other words, does
it pursue a legitimate aim and do the means employed bear “a reasonable
relationship of proportionality” to the aims sought to be realised (see Stec v United Kingdom (2006) 43 EHRR
1017, para 51)?
The Court of Appeal
referred to these questions as the “DA
and DS questions”. Prior to answering the questions, the Court concluded
that the natural formulation of the complaint in this reference was that the
appellant and his children had been treated similarly to those whose situation
was relevantly different (i.e. they had been treated similarly to families of
non-disabled people who had not met the contribution condition). On this basis, it was the emphasised words in question (iii) that were
relevant.
The Court’s
answers to the Article 14 questions
The answer to
the first DA and DS question is that
the circumstances fall within the ambit of both Article 8 and A1P1. There was no dispute
before the Court that the subject matter of the complaint fell within the ambit
of both Article 8 and A1P1 ECHR. The
Convention does not require member states to establish BSP but where domestic
law provides for surviving spouses to be entitled to BSP that entitlement is
within the ambit of both Article 8 and A1P1. The reasons for this were set out
by Lady Hale at paragraph [137] of her judgment in DA & DS.
The answer to
the second DA and DS question is that
the difference in treatment was on the ground of “other status” within Article
14. The Court ruled that there was differential
treatment on the grounds of the appellant’s and the children’s status because
the contribution condition could never be satisfied by the deceased due to her
severely disabled status.
The answer to
the third DA and DS question is that
the appellant and his children had been treated in the same way as other people
not sharing their status whose situation is relevantly different from theirs. The Court found that the deceased, who as a result of disability could
not work and could never meet the contribution condition, was treated in
exactly the same way as an individual who could work and who could meet the
contribution condition but did not do so. This meant that the appellant and his
children had been treated in the same way as others whose situation was
significantly different by reason of the disability of the deceased. The 2015 Act did not differentiate between
persons in significantly different situations and there had been a failure to
treat differently persons whose situations were significantly different. The
discrimination was by comparison to non-disabled persons.
The answer to
the fourth DA and DS question is that
the respondent failed to justify the similarity in treatment of those with and
those without severe disabilities so that the contributory principle, in so far
as it affects those individuals who through disability cannot work throughout
their working life, is manifestly without reasonable foundation. The Court of Appeal
answered the fourth DA & DS question,
which relates to the respondent’s justification for the adverse treatment, by
breaking it down into the four stage analysis which was formulated in the case
of Bank Mellat v Her Majesty’s Treasury
(No 2) [2014] AC 700 at 790 – 791 paragraph [74].
Once the respondent put forward its reasons for the
adverse treatment, the Court used the Bank
Mellat technique to answer the sole question as to whether or not the
appellant had demonstrated that the reasons were “manifestly without reasonable
foundation”. The Court was bound by the majority decision in DA & DS so that the “manifestly
without reasonable foundation” formula applied to all four stages of Bank Mellat.
The Court found that the factors relied on by the
respondent constituted explanations
as to why the contribution condition was included in the legislation. They did
not constitute justification for the
discriminatory effect of the contribution condition when applied to spouses of
people with severe disabilities who were never able to work throughout their
working life.
The Court also found that the respondent failed to
comply with the positive obligation to make necessary distinctions between
persons or groups whose circumstances are relevantly and significantly
different. This failure was confirmed by
the respondent’s breach of its obligation to comply with the United Nations
Convention on the Rights of the Child and the United Nations Convention on the
Rights of Persons with Disabilities, which informs interpretation of the ECHR.
Having applied the Bank Mellat technique, the Court concluded that the contributory
policy in its application to those who through disability were unable to work
throughout their working life was manifestly without reasonable foundation. The inclusion of an exception in the legislation would simply amount
to recognition that those who cannot contribute should not be excluded. It was
possible to make an exception without undermining the contributory principle,
as shown by section 30(3) of the 2015 Act.
Conclusion
The Court considered that the exception was limited
to the facts of the reference. It read in an exception that makes this clear,
in the following terms:
“For the purposes of
section 29(1)(d) the contribution condition is to be treated as met if the
deceased was unable to comply with section 30(1) throughout her working life
due to disability.”
The Court concluded that section 29(1)(d) of the
2015 Act should be read and given effect so that the contribution condition is
to be treated as met if the deceased was unable to comply with section 30(1)
throughout her working life due to disability.
Reading and giving effect to the 2015 Act in this manner means that it
is compatible with Article 14 ECHR read in conjunction with Article 8 and A1P1.
NOTES TO
EDITORS
- This summary should be read together with the judgment
and should not be read in isolation. Nothing said in this summary
adds to or amends the judgment. The full judgment will be
available on the Judiciary NI website (https://judiciaryni.uk).
ENDS