Published:  12th September 2022

*CASE UPDATE*

This case is currently being appealed by the DWP in the Court of Appeal.  We are not currently taking on cases in relation to this issue.  If you think you might be in a similar situation to Mr Jwanczuk and would like advice about this issue, please see our signposting list here which provides details of welfare benefits advisors who may be able to assist you.

The High Court has ruled (7 September 2022) that it is a breach of human rights to deny Bereavement Support Payment (BSP) to surviving families of people who could not work because of life-long disability.

BSP is paid to help with the impact of bereavement on families following the death of a husband, wife, or civil partner. The Pensions Act 2014 on its face requires the deceased person to have actually paid national insurance contributions.

Mr Jwanczuk’s deceased wife Suzzi Jwanczuk had severe disabilities and was unable to work throughout her life, and therefore was never in a position to pay national insurance contributions, although she had a lengthy history of national insurance credits. Mr Jwanczuk was accordingly refused BSP.

Mr Justice Kerr’s decision uses the Human Rights Act 1998 to hold that the relevant Pensions Act provisions must be read so that surviving partners of those unable to work throughout their working life through disability can receive Bereavement Support Payment.

Lawyers for Public Law Project argued on behalf of Mr Jwanczuk that the ruling in a similar case in 2020 in Northern Ireland should be followed in Mr Jwanczuk’s case. O’Donnell v Department for Communities had also found that the claimant should receive BSP on the basis that his deceased wife had been unable to work throughout her working life due to severe disability. 

Mr Justice Kerr found that the same approach should be followed with the England and Wales equivalent, the Pensions Act 2014. 

The High Court have granted the Secretary of State Permission to Appeal to the Court of Appeal.

Mr Jwanczuk said:

“When my claim for bereavement support payment was rejected, I felt angry.  It was hard to understand why an injustice like this could take place.  It was important to get the decision overturned because other people shouldn’t have to go through what I’ve been through at a difficult time in their lives when they first lose their partner. 

It’s not like I will ever be over Suzzi’s death, but I feel like I have been constantly trying to fight for something I and other people in my position should be entitled to because of the law’s perception of Suzzi and others.  The case has validated Suzzi’s existence as a human being.  I would like to thank the judge in this case for hearing the case and ruling in my favour.  I want to thank Public Law Project, without their help this case would never have come to fruition.”

Alice Stevens, solicitor at Public Law Project said:

“We’re delighted that our client has been successful and his human rights have been recognised by the court.

We hope that the judgment will shore up the eligibility criteria of BSP in the UK and ensure that discrimination against those marginalised by disability is eliminated.”

Notes

  • The court, as was the case in O’Donnell, used section 3 of the Human Rights Act 1998 to read in an exception to the legislation.  In O’Donnell it was noted that reading and giving effect to the Pensions Act (NI) 2015 in that way meant that it was compatible with Article 14 EHRC, when read in with Article 8 and A1P1.
    • Article 14 requires that all of the rights and freedoms set out in the Act must be protected and applied without discrimination.
    • Article 8 protects your right to respect for your private and family life.
    • A1P1 protects your rights to enjoy your property peacefully, including welfare benefits.
  • BSP was introduced in the Pensions Act 2014. There are a number of criteria that must be satisfied in order for a claimant to obtain BSP, including a contribution condition as set out in section 31. 
  • The case was funded by legal aid.  Mr Jwanczuk is grateful to the charity WAY (Widowed and Young) who have supported him since Suzzi’s death.
  • Alice Stevens has been a solicitor at Public Law Project since June 2021. Before this she specialised in Civil Liberties at Broudie Jackson Canter, where she represented bereaved families at inquests and also brought judicial reviews on behalf of her clients.
  • The Claimant was also represented by Catherine Callaghan KC of Blackstone Chambers and Tom Royston of Garden Court North Chambers.