Queen’s Bench Division, Administrative Court, Kerr J,  EWHC 2298 (Admin), 7 September 2022
The High Court ruled that the exclusion from entitlement to a bereavement support payment (‘BSP’) of the widower of a woman who had, by reason of disability, paid no national insurance contributions (because she was unable to work) breached Article 14 ECHR read with A1P1. In doing so the judge reached the same conclusion as Northern Ireland’s Court of Appeal had in O’Donnell v. Department for Communities  NICA 36.
Kerr J ruled at §81 that the claimant “enjoys the status contended for… the spouse of a deceased who was ‘severely disabled so that she was unable to work and therefore unable to satisfy the contribution condition’” for BSP. He was satisfied, as had been the NICA in O’Donnell, that the claimant had been subject to Thlimmenos discrimination (that is, he had been treated the same as a person (the bereaved spouse of a non-disabled person who had never paid NI contributions) whose circumstances were materially different (because the deceased person had not been disabled) (§85). He went on to find, as the NICA had, that the discrimination was not justified because, although the exclusionary rule served legitimate aims of rewarding work and maintaining a simple and transparent benefits system, the defendant failed on the third and fourth Bank Mellat questions. Kerr J had set out the reasoning in O’Donnell as follows (at §40):
“ In answer to those questions, we consider that the policy in its application to those who through disability are unable to work throughout their working life is manifestly without reasonable foundation. It is just not reasonable to suggest that one can incentivise a severely disabled person to work if through their disability they cannot work. Alternatively, to put it another way, that is manifestly without reasonable foundation. Furthermore, one cannot make work pay if through disability the individual cannot work. There is no stigma attached to credits of national insurance if a person is disabled. No one is going to think worse of a disabled person who can never work if they do not do so and receive credits rather than making payments. The contributory principle for BSP is extremely modest and that extremely modest application of the principle is not undermined by an exception being made in relation to those who through disability cannot contribute throughout their working life. An exception would simply amount to recognition that those who cannot contribute should not be excluded. That does undermine the close relationship between the contribution condition and employment merely recognising that the severely disabled are at a substantial disadvantage if they cannot work throughout their working life. It is entirely possible to make an exception without undermining the contributory principle as is shown by s 30(3) of the 2015 Act. The policy of parity may explain why in Northern Ireland the relevant provisions have been adopted given that they were adopted in England and Wales but that policy does not serve to justify the impugned difference in treatment. Unjustifiable discrimination is not justified by parity. In answer to question three, we consider that a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. That less intrusive measure was to create an exception for those never able to work through disability and therefore never able to pay Class 1 or Class 2 National Insurance Contributions. In answer to the fourth question, the severity of the measure’s effect on the associated rights of the persons whose deceased spouse or civil partner was never able to work through disability was clearly disproportionate to the likely benefits of the impugned measure.
 We also consider that the respondent has failed to comply with the positive obligation to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different. This failure is confirmed by the respondent’s breach of its obligation to comply with UNCRC and the UNCRPD, which informs interpretation of the ECHR.
 As Lord Reed stated, in ‘essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure’. We consider that the adverse impact is disproportionate. The … respondent has 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 effects those individuals who through disability cannot work throughout their working life is manifestly without reasonable foundation.”
At §89 Kerr J stated: “I respectfully agree with those answers … which do not need elaboration and on which I cannot improve”.
Claimant: Catherine Callaghan QC and Tom Royston, instructed by Public Law Project
Defendant: Clive Sheldon QC and Zoe Gannon, instructed by Government Legal Department