42.To be eligible for Bereavement Support Payment the surviving partner has to have been married to or in a civil partnership with the person who has died. The same was true of the benefits that BSP replaces (Bereavement Payment, Widowed Parent’s Allowance and Bereavement Allowance). Widowed Parent’s Allowance is still being paid to eligible spouses or civil partners where the person died before 6 April 2017.
43.In its 2016 report, Support for the bereaved, our predecessor Committee was concerned that bereaved cohabitees with children were not eligible for bereavement benefits. It concluded that the “cost of extending the Bereavement Support Payment to cohabitees with dependent children is low, relative to the overall cost of the system”. It recommended “that the Bereavement Support Payment be extended to cohabiting couples with dependent children, using medium-term savings from the bereavement benefits reform”.
44.The Government rejected the Committee’s recommendation, citing difficulties in defining and proving cohabitation:
“proving cohabitation is a lengthy complex process which would be distressing, especially to the recently bereaved. It is not a straightforward concept and can be open to interpretation leading to delays and additional requirements for claimants”.
45.The former Parliamentary Under-Secretary of State, Justin Tomlinson MP, outlined the Department’s reasoning for continuing to restrict BSP to married couples or those in a civil partnership in a Westminster Hall debate in January 2019. He argued that the restriction “promotes institutions of marriage and civil partnerships”; that “cohabitation is not a straightforward concept and can sometimes be open to interpretation” and that extending eligibility to cohabiting couples could “trigger multiple claims” which could “lead to delays and additional burdens to claimants”.
46.The evidence we received to our inquiry highlighted clearly the cost to families of bereaved cohabitees not being eligible for bereavement benefits, despite the fact that they face similar circumstances. For example, we heard from Elanor, who had to rely on financial help from her family, having given birth just 18 days after losing her partner:
Box 3: Elanor’s story
I had our first and only child 18 days after losing Robin in a motorbike accident in 2005. I was 33. We weren’t married because he didn’t believe in it, but also, it’s so expensive these days and we couldn’t have afforded it.
He paid into National Insurance for about 15 years and our daughter sees none of that. It’s wrong. The only way I survived financially after being widowed was because my parents helped me out - that and we had life insurance that paid off our mortgage if one of us died. My parents are retired and have helped me keep my car and pay for trips and uniform for Sophie - without which she would have lost out on many things.
47.Lalena explained that she faces high costs of childcare in order to work full-time after her partner died. Despite having three children with her partner, she was not entitled to bereavement benefits:
Box 4: Lalena’s story
Adam was killed in a car crash in February 2017. He was 37. He had been a postman for 14 years. Our daughter was seven and our twins were six at the time.
We had been together so long that we felt married, we did the things married people did, and we were passionately in love. He was my husband in my eyes, the love of my whole life.
I am now a single mum with three children, yet I’m not entitled to anything. I have returned to work full time to support my children and try to pay a mortgage, but by doing so I now have to put my three children into after-school clubs three days a week at £500 a month. Life is now chaotic-even more so, life is upside down as it is without added drama.
I believe the government needs to get with the times and recognise that it’s not modern-day tradition to be married. A lot of couples now cohabiting. I do believe cohabiting couples should have the same rights as married couples (with certain restrictions). Let’s hope the law gets changed soon, to protect families, not punish them; we are grieving after all.
48.Kathryn had been with her partner for almost 20 years, and told us that had she been eligible for bereavement benefits it would have provided her with additional “breathing space”, to spend more time with her children and support them in their grief:
Box 5: Kathryn’s story
I was widowed very suddenly on 10 November 2018. We did not marry as we would rather support the boys in having a secure home and helping them to go to uni. One wants to do engineering the other astrophysics, so saving for university fees became more important. Needless to say these savings have gone on funeral costs. We have been together 19 years and had a joint mortgage for 15 years. I applied for bereavement support payments but was told I would not be entitled to it.
I had to return to work after four months even though my children both really needed me at home, and I have not had time to process and grieve for Keith. Bereavement support would have provided me with a little bit of breathing space allowing me to provide time with my children and support them not just with their grief but also dealing with the additional demands of supporting the eldest through is A levels just a few months after seeing his dad die in front of them. The youngest has had a growth spurt his feet growing two sizes since losing his dad and none of his clothes that we bought last summer, and autumn now fit him, again another worry that he needs new clothes that to be honest I can ill afford.
After 19 and a half years together and Keith paying NI and tax for 40 years, and, supporting his family we have been left in the position of trying to make ends meet. Shopping in the reduced section of the supermarket, not been able to plant a tree in remembrance or buy the children items and even the possibility of having to change schools due to the bus fare.
49.Cohabitation is already a familiar concept to the social security system. Entitlement to Universal Credit, for example, depends not only on if a claimant is single, married or in a civil partnership, but also if they are living with someone as if they are married (i.e. cohabiting). The Department’s own guidance to staff on the factors that determine whether a couple are living together as if a married couple is prefaced, “the general principle in SS [social security] legislation is that couples, be they married or unmarried, should be treated in a similar way”.
50.Bereavement Support Payment was designed to modernise bereavement benefits and make them more accessible. Multiple witnesses argued in written evidence that restricting Bereavement Support Payment to married couples or those in a civil partnership was outdated and not reflective of modern society; inconsistent; and potentially discriminatory. For example, the National Association of Funeral Directors commented:
A system that completely fails to recognise the needs of a growing number of cohabitating couples is unfair and not reflective of modern society.
Marie Curie also observed:
In much of the benefits system, a person simply co-habiting with a partner is regarded as being part of a couple when determining eligibility for and the level of benefit paid. It is inconsistent and insensitive of the DWP to regard a person who is not married or in a civil partnership, in this way, as being part of a couple only until their partner has died.
51.The Government has argued that extending eligibility for Bereavement Support Payment to bereaved cohabitees would create complexities. It says, in particular, that cohabitation is “not a straightforward concept” and could lead to “multiple claims”. Cohabitation is, however, already a familiar concept to the benefits system, for example, in Universal Credit.
52.The Government has said that Bereavement Support Payment was designed to make bereavement benefits more accessible. Bereaved cohabitees with dependent children face similar costs of bereavement to other families—exactly the sort of costs that BSP is intended to mitigate. There is no good reason to deny Bereavement Support Payment to these families. The Government needs urgently to rectify this injustice.
53.In August 2018, the Supreme Court ruled on the case of Siobhan McLaughlin. Ms McLaughlin’s partner, John Adams, died in 2014. They were not married but had lived together for 23 years and had four children. Her partner’s National Insurance contributions would have made Ms McLaughlin eligible for Widowed Parent’s Allowance, had she been married to her partner. Her claim for Widowed Parent’s Allowance was refused because she was not married, and she applied for judicial review of that decision.
54.The Supreme Court ruled that denial of Widowed Parent’s Allowance to Ms McLaughlin was incompatible with Article 14 of the European Convention on Human Rights (right against discrimination) when read with Article 8 (right to respect for private and family life). This was because Widowed Parent’s Allowance was intended to mitigate the financial loss to children of a bereavement—a loss which does not depend on their parents’ marital status. The Supreme Court made a “declaration of incompatibility” under the Human Rights Act 1998. This does not in itself change the law. It is now for the Government and Parliament to decide how to respond.
55.Widowed Parent’s Allowance (WPA) is still payable to those bereaved before 6 April 2017 who have dependent children, for as long as the recipient is eligible to receive Child Benefit (until the child reaches 16, or 20 in some cases) and meets the other eligibility criteria. There are currently 32,381 people claiming Widowed Parent’s Allowance (as of February 2019) receiving £112.39 per week on average. The eligibility criteria mean that, in theory, there could be active claims of WPA until 2038.
56.We asked the Minister when the Government planned to take action to address the McLaughlin judgment. He explained that the Government was committed to resolving the incompatibility but that it had not yet identified a suitable solution:
We recognise that we have incompatible law on the statute book. While we are actively considering possible options, there isn’t one simple or obvious solution. This is something I have taken a very close interest in over the past three months because of the significance of the ruling. In nearly all cases, there is a very easy solution to most problems; invariably it is the wrong one. This is something that we have to get right, which is why I am looking very closely at it. We have to consider all the issues fully, and there are a number of very complicated issues. In my view, it would be wrong to make a decision on what action we will take before we had considered all of them.
57.The McLaughlin ruling did not directly apply to Bereavement Support Payment. Baroness Hale, one of the Supreme Court justices, stated in the McLaughlin ruling that it “does not follow that the new law [BSP] is incompatible”. She added that the Supreme Court had not “heard argument about” BSP; and that, had it done so, “the argument would no doubt be very different from the argument we have heard in this case”.
58.However, since BSP is paid at a higher rate to those with dependent children, it assumes that those families will face higher immediate costs. The central principle of the McLaughlin ruling may therefore be engaged—namely, that the financial costs of a bereavement to a household with children does not depend on their parents’ marital status. For this reason, we discuss eligibility for Widowed Parent’s Allowance and Bereavement Support Payment together below.
59.Over a year after it was given, the Government has not yet responded to the McLaughlin ruling, which found that not paying Widowed Parent’s Allowance to cohabitees is incompatible with human rights law.
60.The McLaughlin ruling did not apply directly to Bereavement Support Payment. The same central principle applies, however: the fact that BSP is paid at a higher rate to those with dependent children must be because the Government assumes those families face higher immediate costs as a result of bereavement. The financial cost of bereavement to families with dependent children is no less because their parents were not married.
62.There are a number of legislative options open to the Government in response to the McLaughlin ruling. The Minister outlined some of the options that he was actively considering:
They include things like a remedial order, which you would expect. They also include the potential of making ex gratia payments.
63.A Remedial Order under the Human Rights Act 1998 can amend primary legislation following a declaration of incompatibility by the courts. It could amend the eligibility criteria for Widowed Payment’s Allowance, but it is unclear whether it would be able to amend the eligibility criteria for Bereavement Support Payment, as BSP did not fall within the scope of the court’s declaration of incompatibility. Making ex gratia payments would not change the underlying eligibility criteria for WPA or BSP but could be a form of compensation for those who would have been eligible for WPA had they been married or in a civil partnership. A third option would be to bring forward primary legislation to amend the eligibility criteria for Widowed Parent’s Allowance and Bereavement Support Payment at the same time.
64.We are keen to end the delay faced by bereaved families to accessing the support they need and to which they should be entitled. The Department has acted too slowly in response to the McLaughlin judgment. One option may have been to bring forward a Remedial Order. However, the Government has not committed to doing so, and it is unclear if such an order would in any case be able to amend the eligibility criteria for Bereavement Support Payment. Ex gratia payments would not change the underlying eligibility criteria for either benefit. It may therefore be easier and quicker to deal with both Widowed Parent’s Allowance and Bereavement Support Payment in primary legislation, since the same issue is at stake: how to support families in which the partners are not in a legally recognised relationship.
65.Regardless of which legislative vehicle it uses to do so, the Government has a number of policy options open to it to make bereaved cohabitees eligible for bereavement benefits.
66.One way forward would be to make bereaved children directly eligible for bereavement benefits. They could then be claimed by the surviving partner on their behalf. This would resolve the issue of cohabitation, as entitlement would not depend on the parents’ marital status. The Childhood Bereavement Network and Widowed and Young both suggested to us that the Government should explore the option of making children directly eligible for bereavement benefits.
67.This approach is common in many European countries. The Supreme Court highlighted that “it is noteworthy that in most other member states survivor’s pensions are paid directly to the children irrespective of birth status”. Analysis published by the National Children’s Bureau (NCB) found that of “the 42 member states [of the Council of Europe] for which information is obtainable, 36 pay a survivor’s pension to a child bereaved of a parent (or both parents), usually up to a maximum age.”
68.The Minister told us in oral evidence that he was not, however, currently considering this option in response to the McLaughlin ruling. He said that this was because bereavement benefits were designed to support the individual with responsibility for the financial affairs of the family:
I think there are very good reasons why not to do it that way. Other countries do have orphan benefits, for example, but this benefit is designed to support the individual who takes over the responsibility, or previously had part of the responsibility, for the financial affairs of that couple. The children do not ordinarily have responsibility for the financial affairs of a family or a household.
69.The main drawback of making children directly eligible for bereavement benefits is that it would exclude cohabiting partners without dependent children who may be equally in need of support. We heard that a simpler approach, that avoids this drawback, would be for DWP to simply recognise cohabitation as grounds for eligibility for bereavement benefits. Scott Sinclair, Head of Policy and Public Affairs at Marie Curie argued:
I am of the view that the DWP should just recognise cohabitation. I understand the idea that you could build a system where the children have the payments that are given to the parents, but it seems strange to build another system when the DWP could just extend it—let’s add an understanding of cohabitation for existing benefits to this one.
70.The Government has recently announced plans to extend bereavement damages under the Fatal Accidents Act 1976 to bereaved cohabitees. Currently under the Act, claims for bereavement damages can be granted to the spouse or civil partner of the deceased, or to the parents of the deceased (if the child is under the age of 18) where they died because of a wrongful act or omission of another person. Following a declaration of incompatibility made in Smith v Lancashire Teaching Hospitals NHS Foundation Trust, the Government laid a proposed draft Remedial Order under the Human Rights Act 1998.
71.The draft Remedial Order extends eligibility for bereavement damages to claimants who cohabited with the deceased for a period of at least two years immediately before the death. Where the deceased was married or in a civil partnership with one person and cohabiting with another (for example, in a case in which the individual was separated but not divorced), the award for bereavement damages would be split equally between the two qualifying parties.
72.We asked the Minister if the Government would follow this approach to bereavement benefits in response to the McLaughlin ruling. He acknowledged that “there are similarities between the two judgments”, but added:
There are some very distinct differences, too. For example, the Fatal Accidents Act is a one-off payment. They have had a two-year definition as the basis of their solution. […] I will look at this case and the potential precedents that it might set, but I think we are not entirely comparing apples with apples.
73.The Minister told us that, given the number of possible options, he was concerned about the potential unintended consequences of the Government’s decision on the McLaughlin judgment:
Every option has unintended consequences, and I am trying to ensure that we make the right decision.
We regret that the Department has not shown this caution in its approach to the introduction and rollout of Universal Credit, the Government’s flagship reform of social security.
74.Given its concern about unintended consequences, the obvious next step is for the Government to consult on the best way to make bereaved cohabitees eligible for bereavement benefits. This could bring any unintended consequences to light and allow the Government to draw upon the widest base of expertise in formulating its response to the McLaughlin judgment.
The Government should start the consultation as soon as possible, and, in any event, before the end of 2019 in order to meet its stated aim of ‘making bereavement benefits more accessible’ as quickly as possible.
43 Work and Pensions Committee, , Ninth Report of Session 2015–16 (HC 551), para 87
44 , Second Special Report of Session 2016–16 (HC 230), paras 19–22
45 , Vol 653 Col 151WH
46 , Vol 653 Col 151WH
47 Low Income Tax Reform Group ()
48 Department for Work and Pensions, , chapter E4
49 For example, Widowed and Young (); Aviva (); Sue Ryder (); Marie Curie (); National Association of Funeral Directors ()
50 National Association of Funeral Directors ()
51 Marie Curie ()
52 House of Commons Library, , CDP-2019–0006
53 Department for Work and Pensions,
55  UKSC 48, para 44
57 Childhood Bereavement Network ()
58 Childhood Bereavement Network (); Widowed and Young ()
60 National Children’s Bureau, , paras 27–32
63 Joint Committee on Human Rights, , Twenty-First Report of Session 2017–19 (HC 2225)
64 Joint Committee on Human Rights, , Twenty-First Report of Session 2017–19 (HC 2225)
Published: 22 October 2019