Open letter to the Joint Committee on Human Rights
Dear members of the Joint Committee on Human Rights,
On 28 July 2020, the Government announced that it would make a remedial order (RO) to extend Widowed Parent’s Allowance (WPA) and Bereavement Support Payment (BSP) to cohabitees with children[i]. This was in response to the High Court ruling on 7 February 2020 that denying higher rate BSP to unmarried, cohabiting parents breached their and their children’s human rights. This followed a similar ruling made by the Supreme Court in August 2018 in relation to the old-style WPA. The Courts’ rulings establish the principle that bereaved children should not be disadvantaged because of their parents’ marital status.
In the event of their untimely death, parents build up their surviving family’s entitlement to these benefits, currently worth around £10,000, through their National Insurance contributions. However, the payments are only made to their surviving partner if the parents were married to one another or in a civil partnership. Those who were living together – even for many years – are not eligible, meaning that their children miss out on vital support. Since the pandemic began in March 2020, the Childhood Bereavement Network estimates that over 3,000 children have faced the double hit of their parent’s death, and then their surviving parent being ineligible for this support. The Prime Minister has described the ineligibility as ‘an injustice’ on 12 February 2020- with each day of delay resolving this matter, at least eight more newly bereaved children are affected.
Given the length of time it has taken for this matter to be addressed, we are concerned to see this matter progressed and ensure that the Government’s proposals are the comprehensive solution needed by families who have been denied these benefits or put off from claiming. We believe that this can best be achieved by ensuring that the remedial order covers the following points.
- The remedial order should amend the eligibility criteria for WPA and BSP so that parents living with but not married to their partner can make a claim
- The Government should take a stepped approach to requiring proof of cohabitation, to reduce administrative costs and intrusion into families’ lives at a time of distress
- No minimum period of cohabitation prior to the death should be imposed on families, as this would unfairly create a distinction between them and married couples/civil partners
- Retrospective payments of WPA and BSP should be made to all those who would have been eligible for payments since the date of introduction of those benefits in 2001 and 2017 respectively, had they met the marriage condition
- The date of entitlement to retrospective payments should be the date of the death of the partner, provided that a claim is made within 3 months of the amended eligibility criteria coming into force
- Retrospective payments of BSP should be for the full amount of £9,800, and the Government should share its thinking on how to calculate retrospective payments of WPA
- Retrospective payments of BSP should be tax free and never interact with other benefits or the benefit cap, and the Government should share its thinking on the treatment of retrospective payments of WPA
- The Government should develop a comprehensive communications plan to make sure that all those entitled to current or retrospective payments are made aware of this, and of the swiftest way to receive them.
Further background to the principles behind this proposal are given in the appendix to this letter. These have been drafted by the charities working with the families affected by this issue. We hope that the evidence of the widespread party support for these principles and for a comprehensive resolution of this matter from a range of voices across society will also be taken into account by the JCHR in scrutinising the Government’s proposals.
Jane Woodward, Executive Director, AtALoss
Alison Penny, Director, Childhood Bereavement Network
Ann Chalmers, Chief Executive, Child Bereavement UK
Steven Wibberley, Chief Executive, Cruse
Victoria Benson, Chief Executive, Gingerbread
Shelley Gilbert MBE, Founder and Lifetime President, Grief Encounter
Lindesay Mace, Down to Earth Manager, Quaker Social Action
Heidi Travis, Chief Executive, Sue Ryder
Georgia Elms, Ambassador, WAY Widowed and Young
Fergus Crow, Chief Executive, Winston’s Wish
John Birrell, Independent Bereavement Consultant, Scotland
Debbie Abrahams, Member of Parliament for Oldham East and Saddleworth
Appendix 1: Background to the expected remedial order
On 28 July 2020, the Government announced that it would make a Remedial Order (RO) to extend Widowed Parent’s Allowance (WPA) and Bereavement Support Payment (BSP) to cohabitees with children[ii]. This was in response to the High Court ruling on 7 February 2020 that denying higher rate BSP to unmarried, cohabiting parents breached their and their children’s human rights. This followed a similar ruling made by the Supreme Court in August 2018 in relation to the old-style WPA. The Courts’ rulings establish the principle that bereaved children should not be disadvantaged because of their parents’ marital status.
The Childhood Bereavement Network estimates that, solely because of the marriage condition,
- around 32,000 families were unable to claim WPA between 2001 and 2017 (2,000 new claims per year x 16 years) and
- around 7,500 families have been unable to claim BSP since its introduction in 2017.
A group of charities has previously submitted a paper to the Department for Work and Pensions with options for a stepped approach to proving cohabitation, so that claimants would not face more intrusion than necessary, and administrative costs would be minimised. Proof could include an existing or recent joint claim for benefits, or High Income Child Benefit Charge; a nomination in a Will or private pension; or meeting the Department’s existing criteria for Living Together as a Married Couple or similar criteria.
We believe strongly that the Government should not impose a minimum period of cohabitation on the eligibility criteria. As married couples and civil partners do not have to have been married for a minimum period to qualify for the benefits, to impose this on cohabiting couples only would be to treat them differently and unfairly.
We note that the definition of cohabitation proposed in Lord Marks’ Cohabitation Bill meant that having (or expecting) a child together while living together as a couple negated any minimum period of cohabitation, as did the Law Commission’s proposals in 2007 and Lord Lester’s previous bill in 2008.
If the eligibility criteria for WPA and BSP are incompatible with the European Convention on Human Rights as found by the Supreme Court and the High Court respectively, then they must always have been incompatible, and so we expect DWP to make retrospective payments to all parents who would have been eligible but for the marriage/civil partnership condition.
In the case of WPA, we expect these retrospective payments to be made to any parent bereaved of their cohabiting partner between and including 9 April 2001 and 5 April 2017. In the case of BSP, we expect these retrospective payments to be made to any parent bereaved on or after 6 April 2017.
If the Government were to choose another date, then deserving families will miss out. For example, if the Government were to make no retrospective payments, and pay the benefits only to those bereaved on or after the date of the RO’s introduction, then families bereaved during the pandemic would receive no support. This would include those families who were prevented from marrying by the coronavirus restrictions:
After 11 years together, Andy and Danielle, both key workers, were due to marry in August 2020. The coronavirus restrictions meant they had to cancel their wedding, and it was rescheduled for 20 August 2021. Tragically, Andy died suddenly before their new wedding day, collapsing unexpectedly at home on 15 January 2021. Having followed the Government’s requirement to cancel their original wedding date, Danielle is now unable to claim Bereavement Support Payment to help bring up her and Andy’s son Arlo.
If the Government were to make retrospective payments only to those whose partner died on or after the date of the respective judgments, then the very families who won their cases – Siobhan McLaughlin, Kevin Simpson and James Jackson, would not receive any support.
If the Government were to make retrospective payments to those whose partner died before the respective judgment but who would still have been eligible for ongoing payments at that time, apart from the marriage condition, then these families would only receive partial remedy. This does not seem fair, when the courts ruled that denying them the benefits breached their and their children’s human rights. In the case of Kevin Simpson, for example, because his partner died on 7.10.18 and the High Court judgment was on 7.2.2020, i.e. 14 months later, he would no longer have been eligible for the lump sum payment at the time of the judgment as this has to be claimed within the first 12 months of the death of the deceased parent. Paying Kevin Simpson the monthly amount of higher rate BSP for just 4 months despite his High Court victory is clearly not compatible with Article 13 ECHR and the right to an effective remedy for a breach of a Convention right.
Likewise, Siobhan McLaughlin, whose partner died in 2014 when her children were aged between 11 and 19 years old; should be paid from the date of her partner’s death and not from the date of the judgement in her favour. She would lose out on any remedy if the remedial order is not made retrospectively and only takes effect from the date it is laid. She won her case at the High Court in 2015 but the government then appealed. She took her case to the Supreme Court and won in 2018. Her youngest child is now 18 and is due to leave school, by which time she would lose eligibility for the WPA payment. This illustrates the need for retrospective payments.
The only just solution is to make retrospective payments back to the introduction of the respective benefits. We anticipate that if this does not happen, further legal challenges will be brought, prolonging families’ distress and potentially at greater cost to the taxpayer.
Date of entitlement
Generally, the date from which a parent would be entitled to bereavement benefits would be determined by the date of the claim. However, this would not be an appropriate determinant for retrospective cases. Some parents will have made a claim for WPA or BSP, and DWP and/or the parent may have a record of this. However, others will have been put off from making a claim as they knew they would be turned down. In some cases, parents would have made a claim but were informed by DWP’s Bereavement Benefits team not to do so as it would be refused. It would not be just to fix the date of entitlement to the date of the claim, as this would disadvantage those parents who followed the information they were given. Therefore, the date of entitlement should be the date of the death of the partner, provided that a claim is made within 3 months of the amended eligibility criteria coming into force.
Determining retrospective amounts
The amount to be paid to those who are or were otherwise eligible for BSP is relatively straightforward if the date of entitlement is taken as the date of the death, as this will simply be the full entitlement of Higher Rate Bereavement Support Payment ie £9,800.
The situation for those who are or were otherwise eligible for WPA is much more complicated. We estimate there are up to 32,000 families who were unable to claim between 2001 and 2017 (2,000 new claims per year x 16 years). The actual amount which families would have received depends on:
- their partner’s NI contributions and
- how long they would have been able to claim (the end of their claim would have been triggered by starting to cohabit with a new partner, reaching state pension age, or their youngest child no longer qualifying for child benefit).
Receiving WPA would also have created a tax liability for these families, and would have been taken into account in the calculation of any means tested benefits over the time for which they could have claimed.
We assume that the Department are considering at least two options for paying WPA retrospectively.
- Option 1: calculate each family’s entitlement separately or
- Option 2: pay each family the same total sum.
Option 1 would mean that families would get a sum closer to the amount by which they have lost out and would be the most accurate solution. However, the administrative costs to DWP would be much higher. The burden on families on producing evidence might also be higher. As well as proving they were cohabiting with their partner when their partner died, they might also have to prove that they had not subsequently moved in with a new partner etc.
Option 2 would mean that some families would get more than they would have done under Option 1 and some would get less. However, presumably cases would likely be settled much more quickly than they would under option 1.
The full amount of Higher Rate Bereavement Support Payment should be paid to those entitled to retrospective payments, and the Government should share its thinking on how it proposes to calculate retrospective payments of WPA.
Tax status and interaction with other benefits
The tax status of retrospective payments and their interaction with current and future benefits will need careful consideration. The position is different for WPA, which is taxed and interacts with other benefits, and BSP, which is not taxed and does not interact with other benefits or the benefit cap.
If retrospective payments of WPA were taxed in the year of receipt, this would potentially create a large tax liability for that year. If the tax liability was spread back to the years in which people would have been eligible, this would be extremely complicated to calculate, and burdensome both to claimants and to DWP, potentially delaying payments further. Similarly, it would be very complex to calculate the individual interactions with any other benefits claimants had received during the period over which they were refused WPA. The Department should share its thinking on the proposed treatment of retrospective payments of WPA.
BSP is not taxed and the ongoing monthly payments do not interact with other benefits or the benefit cap. The initial lump sum is treated as capital but disregarded for 12 months. If retrospective payments are made as a lump sum, it would be unfair to tax this or to take it into account in the calculation of other benefits or the benefit cap. To do so would be to disadvantage these families on the basis of their marital status. Any retrospective payments of BSP should not be taxed and should be disregarded in the calculation of other benefits for all time.
Identifying parents who will be eligible to claim current or retrospective WPA or BSP, and encouraging them to do so, will be very challenging. The Childhood Bereavement Network already suspects there is significant under-claiming of bereavement benefits, even among those who are eligible. The administrative and cognitive challenges of grief are well known. DWP estimated that around 3/5 of WPA claimants did not have other benefit claims in place at the time of the death, so were not already in contact with DWP. Added to these ongoing challenges is the passage of time: some parents who will be eligible for bereavement benefits under the Remedial Order will have been bereaved many years ago and their circumstances may have changed radically during this time. While bereavement support organisations will be able to raise awareness among families currently being supported, it will be harder to do so among those no longer in contact.
Some parents may be reluctant to claim even if they are aware of their new eligibility, not wanting to stir up the very difficult feelings associated with the death, put off by previously hurtful interactions with the Department when their claim was refused, concerned about the level of evidence needed to support their claim, and worried that they will be turned down again. Others who have an outstanding claim or appeal may be uncertain about whether they should wait for this to be dealt with, or put in a new claim following introduction of the Remedial Order.
We recommend that the Department work with organisations supporting bereaved families and lone parents to develop a comprehensive communications plan to make sure that all those entitled to current and retrospective payments are made aware of this, and of the swiftest way of receiving them.
 Widowed Parent’s Allowance was introduced in April 2001. On 6 April 2017 it was replaced for new claimants by Bereavement Support Payment, paid at a Higher Rate to those with dependent children. https://commonslibrary.parliament.uk/research-briefings/cbp-7887/