Daniel Richard Jwanczuk v Secretary of State for Work and Pensions

This appeal concerns a claim for bereavement support payment (“BSP”) made by the Claimant, Daniel Jwanczuk, following the death of his wife Suzanne (“Suzzi”). Suzzi was born in 1974. She suffered throughout her life from a progressive degenerative condition called Ullrich congenital muscular dystrophy, which rendered her severely disabled. She and the Claimant had known each other since they were children. They fell in love and started living together when they were young adults: they married in 2005. Although Suzzi had hopes of going into paid employment, at least in the earlier stages of her illness, she never did so. The Claimant cared for her until her death on 20 November 2020. His witness statement gives a moving account of their relationship and of her long and courageous struggle to make the most of her life despite her disabilities.

BSP is a non-means-tested contributory benefit, the purpose of which is to assist with the additional expenditure that is typically associated with bereavement. It is paid partly as an immediate lump sum, and partly by monthly payments for a period of eighteen months: it is paid at one or other of two flat rates, depending on whether the survivor has dependent children. It was introduced by the Pensions Act 2014, replacing three existing forms of bereavement benefit – bereavement payment, bereavement allowance and widowed parent’s allowance. The form of the new benefit was the subject of a consultation document issued jointly in December 2011 by the Department for Work and Pensions (“the DWP”) and the Northern Ireland Department for Social Development titled Bereavement Benefit for the 21st Century.

The relevant provisions of the 2014 Act read as follows:

“30.

Bereavement support payment

(1)

A person is entitled to a benefit called bereavement support payment if –

(a)

the person’s spouse, civil partner or cohabiting partner dies,

(aa) …

(b)

the person is under pensionable age when the spouse, civil partner or cohabiting partner dies,

(c)

the person is ordinarily resident in Great Britain … when the spouse, civil partner or cohabiting partner dies, and

(d)

the contribution condition is met (section 31).

(1A)-(1D) …

(2)

The Secretary of State must by regulations specify –

(a)

the rate of the benefit, and

(b)

the period for which it is payable.

(3)-(7) …

31.

Bereavement support payment: contribution condition and amendments

(1)

For the purposes of section 30(1)(d) the contribution condition is that, for at least one tax year during the deceased’s working life –

(a)

he or she actually paid Class 1 or Class 2 national insurance contributions, and

(b)

those contributions give rise to an earnings factor (or total earnings factors) equal to or greater than 25 times the lower earnings limit for the tax year.

(2)

For earnings factors, see sections 22 and 23 of the Social Security Contributions and Benefits Act 1992.

(3)

For the purposes of section 30(1)(d) the contribution condition is to be treated as met if the deceased was an employed earner and died as a result of —

(a)

a personal injury of the kind mentioned in section 94(1) of the Social Security Contributions and Benefits Act 1992, or

(b)

a disease or personal injury of the kind mentioned in section 108(1) of that Act.

(4)

In this section the following expressions have the meaning given by section 122(1) of the Social Security Contributions and Benefits Act 1992 —

‘employed earner’,

‘lower earnings limit’,

‘tax year’, and

‘working life’.

(5)

… .”

I need not elucidate all the cross-references in section 31 to the Social Security Contributions and Benefits Act 1992. It is enough to say that “working life”, as referred to in subsection (1), begins in the tax year in which the person in question attains the age of 16; that an “earnings factor”, as referred to in subsection (2), is a concept adopted by the 1992 Act in order to provide a common basis for measuring earnings; and that the “lower earnings limit” is a weekly figure the amount of which is set each year – in 2022/23 it was £123 per week.

Four points about BSP should be noted at this stage:

Apart from the devastating personal impact on the Claimant, Suzzi’s death caused him real financial difficulties. He lost his income as a carer. The income from the benefits that she had been receiving also ceased to come in. He applied for BSP. This was refused because he could not satisfy the contribution condition since Suzzi had never paid NICs. That refusal was maintained by the DWP in a reconsideration decision dated 6 October 2021. If the Claimant had been found to be eligible the total amount of benefit payable would have been £4,300.

In January 2022, with the assistance of Public Law Project, the Claimant began judicial review proceedings against the Secretary of State for Work and Pensions claiming that the absence of an entitlement to BSP in cases where the deceased spouse had been unable to work as a result of disability constituted a breach of article 14 of the European Convention on Human Rights, read with article 8 and article 1 of Protocol 1 (“A1P1”). He relied principally on the decision of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36, which upheld a claim challenging the same rule under the Northern Ireland benefit legislation.

The Claimant also appealed against the Secretary of State’s decision to the First-tier Tribunal (“the FTT”), but that appeal has been stayed by consent.

By a decision handed down on 7 September 2022 ([2022] EWHC 2298 (Admin), [2023] 1 WLR 711) Kerr J upheld the Claimant’s claim. Applying section 3 of the Human Rights Act 1998, he held that it was possible to construe the 2014 Act in such a way as to treat the contribution condition as having been met “if the deceased was unable to comply with section 31 (1) throughout her working life due to disability”; and he made a declaration in those terms. He made no finding as to whether Suzzi had in fact been unable to earn due to her disability, on the basis that that was a question properly to be decided in the FTT proceedings. I will refer to his reasoning in more detail later. At this stage it is enough to say that he believed that the decision in O’Donnell was indistinguishable and that he ought to follow it.

This is an appeal against that decision, with permission granted by Kerr J himself. The Claimant has been represented by Catherine Callaghan KC and Tom Royston and the Secretary of State by Clive Sheldon KC and Zoe Gannon. All counsel also appeared before Kerr J. Without wishing to discount the contributions of junior counsel, I will for convenience refer to the skeleton arguments as if they were the work of leading counsel only.

I need not say much at this stage about the scope and application of article 14 of the Convention and the relevant provisions of the 1998 Act, but I should record the basics.

Article 14 is headed “Prohibition of discrimination” and reads:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In the present case we are concerned with discrimination on the ground of “other status”. Although the article does not say so in terms, a discriminatory measure will not contravene article 14 if it is shown to be justified.

The correct approach to the application of article 14 in cases concerning entitlement to social security benefits has been most recently and authoritatively reviewed in the judgment of Lord Reed in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] AC 223. It is sufficient at this stage to note three points which are uncontroversial:

Section 3 of the 1998 Act provides that “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. The phrase “so far as it is possible to do so” has been construed as requiring a court to interpret a statutory provision in a way which is contrary to its otherwise clear meaning where necessary to achieve compatibility with the Convention, provided that the resultant construction is not inconsistent with any fundamental feature, or does not “go against the grain”, of the legislation: see Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557. This is often referred to as “the strong interpretative obligation”.

Section 4 of the Act empowers the Court, where it is satisfied that a provision of primary legislation is incompatible with a Convention right, to make a declaration of that incompatibility.

The decision in O’Donnell is central to this appeal, and I should start by summarising the issue and the Court’s reasoning.

Sections 29 and 30 of the Pensions Act (Northern Ireland) 2015 (“PANI”) are in materially identical terms to sections 30 and 31 of the 2014 Act: more particularly section 30 of the former, defining the contribution condition, is in the same terms as section 31 of the latter. It was common ground, the point having been expressly conceded by the respondent Department (“the DfC”) (Footnote: ²), that Mrs O’Donnell, the deceased spouse, had been unable to work throughout her working life due to disability and had therefore never paid any NICs.  Mr O’Donnell’s application for BSP was refused on that basis. He appealed to a Social Security Appeal Tribunal, which referred to the Northern Ireland Court of Appeal the question whether (in short) the relevant provisions were in breach of article 14 of the Convention.

The Court (Morgan LCJ, Stephens LJ and O’Hara J) decided the question in Mr O’Donnell’s favour. Its judgment was delivered by Stephens LJ. After setting out the evidence and the relevant legislative provisions, the judgment proceeds at paras. 42-49 to analyse how the complaint was formulated. It concludes that it was best understood as alleging Thlimmenos discrimination, that is “that the appellant and the children have been treated similarly to those whose situation is relevantly different, with the result that they should have been treated differently” (para. 49) (Footnote: ³).

At para. 51, by reference to the judgment of Lady Hale in R (DA and DS) v Secretary of State for Work and Pensions [2019] UKSC 21, [2019] 1 WLR 3289, the Court identified the relevant questions as being:

“(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?

(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 47, para 51)?”

I will return later to the Court’s full reasoning on those questions, so far as they are in issue before us, but I should give a short account of its conclusions at this stage.

(i) Ambit. The Court held that the circumstances of the claim fall within the ambit of both article 8 and A1P1.

(ii) Status. The Court accepted Mr O’Donnell’s case that the fact that he was “the spouse of a deceased who was severely disabled so that she was unable to work and therefore unable to pay [NICs]” was an “other status” for the purpose of article 14, characterising it as an “indirect associative status” (Footnote: ⁴), and that that was the ground of the difference in treatment of which he complained: see paras. 87 and 89. It should be noted, however, that in its eventual decision the Court formulated the status a little more fully because it included a reference to the deceased spouse having been unable to work “throughout her working life”: see para. 24 below.

(iii) Differential treatment. Para. 90 of the judgment reads:

“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 means that the appellant and his children have been treated in the same way as others whose situation was significantly different by reason of the disability of the deceased.  The 2015 Act has not differentiated between persons in significantly different situations and there has been a failure to treat differently persons whose situations are significantly different.  The discrimination is by comparison to non-disabled persons.”

That analysis is of course consistent with the formulation of the claim by reference to Thlimmenos: see para. 18 above.

(iv) Justification. At paras. 92-100 the Court examines the justifications for the discriminatory treatment advanced by the DfC. Those were primarily set out in the witness statements of Una McConnell, a civil servant in its Social Security Policy and Legislation Division. The DfC also relied on a witness statement of Helen Walker, a Deputy Director (Life Events and Disadvantage) in the Labour Market, Families and Disadvantage Directorate within the DWP, which had been filed for the purpose of litigation in England about a separate BSP issue (R (Jackson) v Secretary of State for Work and Pensions [2020] EWHC 183 Admin, [2020] 1 WLR 1441). Both witness statements are summarised in some detail at paras. 7-15. The Court’s primary conclusion was that this evidence was incapable of satisfying the requirement to prove justification because it did not directly address the discriminatory effect complained of: see para. 93. However, it went on to analyse the issue by reference to the four questions identified by Lord Reed at para. 74 of his judgment in Bank Mellat v Her Majesty’s Treasury (no 2) [2013] UKSC 39, [2014] AC 700. It concluded that justification had not been established: see paras. 95-100. It made it clear that the test that it was applying was whether the application of the contribution condition in Mr O’Donnell’s case was “manifestly without reasonable foundation”: that formulation is adopted in the Strasbourg jurisprudence to denote the least intensive level of scrutiny.

Remedy. At para. 79 of its judgment the Court held that it would not be open to it to make a declaration of incompatibility under section 4 of the 1998 Act because (in short) PANI constituted subordinate rather than primary legislation. However, at para. 102 it found that, pursuant to the strong interpretative obligation under section 3 of the Act, it could and should read in to PANI an exception 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 DfC did not seek permission to appeal against the Court of Appeal’s decision. In March 2021 it issued guidance entitled Bereavement Support Payment – satisfaction of Contribution Condition where the deceased was unable to work due to disability (“the post-O’Donnell Guidance”). The Guidance can be sufficiently summarised for present purposes as follows. It requires decision-makers, in order to comply with O’Donnell, “to consider if the late spouse was unable to work throughout their entire working life due to disability” and goes on to consider what kinds of evidence would need to be considered for that purpose. The first step is to check from the records whether the deceased “had continuous entitlement to Invalidity Benefit, Incapacity Benefit and/or Employment & Support Allowance throughout their working life”: if they did, that could be taken as evidence that they were unable to work. However, if that could not be established, it did not follow that they should be treated as having been able to work for some or all of the period: there might be various reasons why they were unable to work but did not claim benefits. The next step was to see from the records whether they had at any time been in receipt of Jobseekers Allowance or Unemployment Benefit, which were dependent on their being able to work – in which case the claim should be refused. Both those steps could be taken without the need to contact claimants “at what is a very distressing time”. But if they did not provide a conclusive answer it would be necessary to contact the claimant and ask them directly whether the deceased had always been unable to work. The Guidance recognises that claimants may not be able to provide supporting evidence on that question, such as medical records, in which case the decision-maker would have to assess the claimant’s statement “on its merits” and may in the absence of other evidence accept it at face value.

Paras. 1-19 of Kerr J’s judgment contain a summary of the facts and the evidence. The Secretary of State’s evidence took the form of a witness statement from Ms Helen Walker, whose witness statement in the earlier case of Jackson was, as we have seen, relied on in O’Donnell.

Paras. 24-41 summarise the judgment in O’Donnell, and at paras. 42-47 Kerr J considers how he should approach it. Neither party submitted that it was formally binding on him, but they differed as to the weight that should be attached to it. At para. 46 of his judgment Kerr J said that he would be guided by the observations of Ward LJ in Secretary of State for Work and Pensions v Deane [2010] EWCA Civ 699, [2011] PTSR 289. Para. 26 of Ward LJ’s judgment reads (so far as material):

“I am satisfied that we are not obliged to follow decisions of the Northern Ireland Court of Appeal, but we must accord them the greatest respect. Where the decision relates to a statutory requirement which applies or which is the same as that which applies in England and Wales, then we ought to follow that Court in order to prevent the wholly undesirable situation arising of identically worded legislation on the other side of the Irish Sea (or the other side of the Tweed) being applied in inconsistent ways. The same approach as we adopt for cases of the Court of Session in Scotland should be followed in the case of Northern Ireland.”

Those observations were in fact obiter, because the Northern Ireland Court of Appeal was in the event held not to have decided the point in issue; but in support of them Ward LJ quoted from the judgment of this Court in Abbott v Philbin [1960] 1 Ch 27, which I consider below. Having cited Deane, Kerr J added, at para. 47:

“Human rights should if possible have the same content throughout the UK. If O’Donnell is not distinguishable, I would not depart from it unless persuaded that is clearly wrong, which I would find only with great diffidence.”

At paras. 48-74 Kerr J summarises the parties’ submissions. The only point that I need note at this stage is that, unlike the DfC in O’Donnell, Mr Sheldon did not concede that Suzzi was unable to undertake paid work at any point in her working life: he said that there were indications in the evidence (for example, references to her having worked as community volunteer) which suggested that she could have done so at least in the earlier stages of her illness. He did not suggest that that was a question which could be decided in these proceedings: if the Court’s conclusion were that BSP had to be paid in cases where the deceased spouse was unable to work throughout their working life it would be for the FTT to decide the factual question of whether that was so in Suzzi’s case. As noted above, Kerr J accepted that submission: see para. 100.

Kerr J’s consideration of the issues begins at para. 75. He introduces this section by saying:

“I accept Mr Sheldon’s submission that I have to consider the arguments afresh. The NICA’s decision, persuasive as it is, does not formally bind this court. If O’Donnell is wrongly decided, Mr O’Donnell got a windfall and the NI BSP guidance [i.e. what I have called the post-O’Donnell Guidance] is too generous. Even if this case is on all fours with O’Donnell, it would not be right to decide this case only on the basis that O’Donnell stands as authority against the SoS. That said, to the extent that I agree with the NICA’s reasoning, I need not say much more than that I do.”

He adopts the same fourfold analysis as the Court in O’Donnell. Again, I take those points in turn.

(i) Ambit. At para. 76 Kerr J records that it was common ground that the Claimant’s claimed entitlement to BSP came within the ambit of A1P1. That was sufficient to engage article 14 and he did not decide whether it also came within the ambit of article 8.

(ii) Status. In her skeleton argument Ms Callaghan had formulated the status on which the Claimant relied as “being the spouse of a deceased person who was severely disabled so that she was unable to work and therefore unable to pay Class 1 or Class 2 national insurance contributions”: see para. 80. That formulation was not perhaps ideal because it omitted the important phrase “throughout her working life” which appeared in the declaration made in O’Donnell. Mr Sheldon argued that such a status was “too vague to qualify because it is not possible to determine who is within the class, in particular because the formulation does not refer to lifelong inability to work”. Kerr J rejected that argument: paras. 81-82.

(iii) Differential treatment. Kerr J agreed with the Northern Ireland Court of Appeal that there was Thlimmenos discrimination in cases of this kind, since the Claimant and Mr O’Donnell were being “treated in the same way as other people not sharing their status whose situation is relevantly different from theirs”, i.e. people whose failure to meet the contribution condition was as a result of choice rather than disability: see paras. 83-85.

(iv) Justification. Justification is addressed at paras. 86-97 of the judgment, to which I will return later. Broadly, Kerr J adopted the reasoning of the Northern Ireland Court of Appeal as regards each of the Bank Mellat questions (thus also applying the manifestly without reasonable foundation test).

Having reached that conclusion, Kerr J observes at paras. 95-96:

“95.

My decision means comity between courts of the UK jurisdictions is preserved and that the human rights at issue in this case have the same content in England and Wales as in Northern Ireland. I do not accept that the two cases have proceeded on different evidence. I am confident from a reading of O’Donnell and comparing it to the evidence of departmental and parliamentary procedure before me in this case (aided by Ms Callaghan’s submissions in reply) that O’Donnell and this case are being decided on, materially, the same evidence.

96.

The SoS was in a position to demonstrate, if she could, that the evidence was different, but all indications are that it was not. It can be said with confidence that the facts are, essentially, on all fours in the two cases. …”

I should note at this stage that there is no challenge in the grounds of appeal to the conclusion in those paragraphs, and Mr Sheldon has not attempted before us the demonstration referred to in para. 96. In any event, I agree with Kerr J that all the indications are that the evidence before the Northern Ireland Court of Appeal was materially the same as that adduced in this case. It would indeed be surprising if there had not been close liaison between the two Departments in O’Donnell, given the importance of the “parity principle” explained below and the fact that the consultation referred to in para. 2 was conducted jointly by both.

Finally, at para. 99 Kerr J addresses the question of remedy. He finds that it is possible to interpret section 31 of the 2014 Act so as to include an exception in substantially the same terms as had been adopted in O’Donnell.

There are four grounds of appeal but I need not set them out in full. In summary:

The Claimant has filed a Respondent’s Notice seeking to uphold Kerr J’s decision on additional grounds, namely:

I consider first the issue raised by ground 1 and by head (a) of the Respondent’s Notice about the weight to be given to the decision of the Northern Ireland Court of Appeal in O’Donnell.

Kerr J’s direction to himself, based on the judgment of Ward LJ in Deane, was that he was obliged to consider the issues “afresh” but that unless O’Donnell was distinguishable he should only depart from it if it was “clearly wrong”: see paras. 47 and 75 of his judgment. Mr Sheldon submitted that that was the wrong approach. As he put it in his skeleton argument, the requirement that a decision of the Northern Ireland Court of Appeal was entitled to “respect”, as it was put in Deane,

“… means no more than that the judgment of the NICA should be considered carefully; effectively that the Court must ‘have regard’ to a decision of the NICA, and the potential consequence of departing, but not follow it if the Court reasonably disagrees or reasonably concludes that a different decision can and would have (absent a decision of the NICA) been reached. To put it another way, it is not necessary to conclude that the NICA was wrong, or clearly wrong, for the High Court not to follow it, the High Court can decide not to follow a NICA decision where a different reasonable conclusion can be reached. This is particularly so in the context of a Convention case, which must be determined on its own facts and based on the evidence and legal argument placed before the Court. Indeed, especially in the context of Convention arguments, it is possible for different Courts sitting in different jurisdictions to reach a different conclusion from one another.”

Before I consider that submission I should note one point. The question considered in Deane was what approach the Court of Appeal in this jurisdiction should take to a decision on the identical issue by the Northern Ireland Court of Appeal. The argument before us, and I think also before Kerr J, assumed that the answer to that question would equally apply to a court of first instance in England. At this stage I will proceed on the same basis, but I consider the point further at para. 49 below.

Kerr J no doubt directed himself primarily by reference to Deane because, like the present case, it was concerned with a decision of the Northern Ireland Court of Appeal on a social security issue. However, fuller guidance as to the correct approach in cases of this kind can be found in the decision of this Court in Abbott v Philbin to which Ward LJ refers in Deane. Abbott v Philbin was concerned with the status of a decision of the Inner House of the Court of Session in Scotland, rather than the Northern Ireland Court of Appeal, and the decision concerned the meaning of a revenue statute rather than social security legislation, but neither difference is material. The substantive issue in the appeal was whether the value of an option should be assessed for income tax under Schedule E in the year in which it was granted or in the year in which it was exercised. The Inner House had recently, on indistinguishable facts, held that the latter approach was correct: Forbes’ Trustees v Inland Revenue Commissioners [1958] SC 177. Roxburgh J in the High Court had reached the same conclusion, but on different grounds. On the appeal to this Court, Lord Evershed MR, who gave the leading judgment, disapproved Roxburgh J’s reasoning. As regards Forbes, he observed at p. 44 that the reasoning of the Inner House had been “severely and, if I may say so, by no means ineffectively impugned both in the court below and in this court”; and at pp. 44-48 he identified in strong terms what he described as the “difficulties” about that reasoning and his “doubts” about the Inner House’s conclusion, observing that he was doing so “because …, if this matter were to go further, it might be of some assistance if I were to state them” (p. 46). Having done so, however, he continued, at p. 49:

“I ask myself, therefore, having expressed such doubts as I have, with all respect to the judges in Scotland, ought this court now to answer those two questions in a precisely opposite sense? It is, of course, quite true that we in this court are not bound to follow the decisions of the Court of Session, but the Income Tax Act and the relevant Finance Acts apply indifferently both north and south of the border, and if we were to decide those questions in a sense diametrically opposite to the sense which appealed to the Scottish judges, we should lay down a law for England in respect of this not unimportant matter which would be completely opposite to the law which was applied, on exactly the same statutory provisions, north of the border. I cannot think that that is right. In a case of a revenue statute of this kind it is the duty of this court, unless there are compelling reasons to the contrary, to say, expressing such doubts as we feel we ought to do, that we should follow the Scottish decision.”

In short, he believed that the correct course was to express the Court’s doubts and leave it to the House of Lords, if an appeal were pursued, to decide whether they were well-founded. It is reasonably clear that he disagreed with the decision in Forbes but that in circumstances where he had decided that it was necessary to follow it he did not think it appropriate to say so in terms (Footnote: ⁵). Harman LJ expressed the same “doubt” about the correctness of Forbes, albeit in more summary terms, but he agreed with Lord Evershed that, since the Inner House’s decision was indistinguishable, “for reasons of policy it would not be right that this court should express a diametrically opposite view” (p. 52). Sellers LJ likewise agreed that the Court should follow Forbes, but he said that he did not share Lord Evershed’s doubts about its correctness, or “at any rate not with the same emphasis” (p. 50).

The Court gave leave to appeal to the House of Lords, which (by a majority) allowed the appeal and overruled Forbes: see [1961] AC 352. Lord Simonds said, at pp. 367-368:

“… the Court of Appeal were constrained to decide this case in favour of the Crown in deference to the decision of the Court of Session in Forbes. I agree that the two cases are not in any material respect distinguishable and think that they took the proper course in following it.”

Likewise, at p. 373 Lord Reid observed:

“In the present case the Court of Appeal, though not bound to do so, very properly followed the decision of the Court of Session … I say very properly because it is undesirable that there should be conflicting decisions on Revenue matters in Scotland and England.”

The House of Lords thus explicitly approved the course taken by the Court of Appeal.

In my view the approach taken in Abbott v Philbin amounts to a rule of practice, and I will for convenience refer to it as “the Abbott v Philbin rule”. There are other cases (in addition to Deane) which apply the same rule – see, for example, Re Hartland [1911] 1 Ch 459; Secretary of State for Employment and Productivity v Clarke Chapman & Co Ltd [1971] 1 WLR 1094 (per Widgery LJ at p. 1102); and R (DK) v Her Majesty’s Revenue and Customs [2022] EWCA Civ 120, [2022] 3 All ER 1025 (per Singh LJ at para. 46). I have focused on Abbott v Philbin partly because the course taken by this Court was approved by the House of Lords but partly also because it is a particularly strong case: it is, as I have said, reasonably clear that the majority would, but for the decision of the Inner House, have decided the appeal the other way but that it refrained from doing so in order to avoid conflicting decisions about the effect of a UK statute.

It is true that the Abbott v Philbin rule is one of practice only, and Lord Evershed acknowledged that it might be right to depart from it if there were “compelling reasons” to do so. There is no discussion in the authorities of what might amount to sufficiently compelling reasons. But in my view it is clear that the bar is meant to be a high one. Although Ward LJ in Deane used the language of “respect”, the importance of securing uniformity in the interpretation of a statute applying throughout the UK means that something more is required than the usual respect which is paid as a matter of comity to a court of co-ordinate jurisdiction. Nor, in the light of the decision in Abbott v Philbin itself, can it be enough that the second court believes that it would have decided the case the other way. In my view the minimum requirement for a “compelling reason” must be that the second court believes that the first court’s decision was clearly wrong, where the word “clearly” connotes a heightened threshold. Ms Callaghan, supporting the Respondent’s Notice, submitted that even that would not be sufficiently compelling. It is in truth not useful to attempt nicely to calibrate degrees of (perceived) wrongness; and in any event a compelling reason for departing from the decision of the first court may depend on more than simply the strength of the second court’s disagreement. In the end the question has to be decided by reference to the circumstances of the particular case; but the important message is that it will require more than mere disagreement with the decision of the first court to justify a refusal by the second court to follow it.

A particular problem may arise where either the evidence adduced, or the particular points argued, before the second court are substantially different than in the first court. I can conceive that in some circumstances, at least where the differences are fundamental, that might be sufficient to justify a departure from the Abbott v Philbin rule; but generally I believe Courts should be very slow to take that course. In Morelle Ltd v Wakeling [1955] 2 QB 379 the Court of Appeal rejected the argument that the per incuriam doctrine permitted it “to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction … whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide”: see per Sir Raymond Evershed MR at p. 406. The Court was not in that case concerned with a decision of a court in a different UK jurisdiction, but the observation seems equally applicable. The policy reasons for maintaining a uniformity of approach between the different jurisdictions apply even if there were differences in how two cases were presented, and resort to the Supreme Court is always available as the final arbiter. In the present case, although there are some particular arguments raised by Mr Sheldon which may not have been raised, at least in the same way, by the Northern Ireland Court of Appeal, there is no problem about differences in the evidence: see para. 34 above.

I should add that I can see no basis for Mr Sheldon’s submission that the case for the second court departing from the decision of the first is particularly strong in the context of an issue involving Convention rights. I cannot see why there is a greater likelihood in such cases of courts in the different UK jurisdictions reaching different conclusions on identical issues than in other kinds of case; and even if that were so it is precisely the possibility, and undesirability, of that occurring which underlies the policy of restraint which the second court should follow.

In his oral submissions Mr Sheldon suggested that the Abbott v Philbin rule does not apply in this case because Kerr J and the Northern Ireland Court of Appeal were not considering precisely the same legislation. He also made the related point that PANI occupies a different place in the legislative hierarchy than the 2014 Act, since it is made under delegated powers. I see nothing in either point. Sections 29 and 30 of PANI are in identical terms to sections 30 and 31 of the 2014 Act. That is not an accident: rather, it is the result of the Northern Ireland Assembly applying the so-called “parity principle”. That principle is explained by Stephens LJ in para. 10 of the judgment in O’Donnell as follows:

“Under the NIA [the Northern Ireland Act 1988] social security and child maintenance are both ‘transferred matters’ and are the full responsibility of the devolved Government.  However section 87 NIA requires the Secretary of State with responsibility for social security and the equivalent Northern Ireland Minister to consult each other with a view to securing single systems of social security, child support and pensions for the United Kingdom. This provision is the basis for Northern Ireland maintaining parity with the UK in respect of social security, child support and pensions.   Parity is not inflexible and there is scope for the devolved government in NI taking a divergent course.  However there are both practical issues and funding consequences.  The practical issue is that Northern Ireland is dependent on the Department for Work and Pensions computer systems. At an operational level, the social security systems in Great Britain and Northern Ireland have developed in parallel, and virtually all the social security benefits paid in Northern Ireland are processed on IT systems provided and operated by the Department for Work and Pensions. Any divergence from this would incur modification costs which could be substantial. Northern Ireland could not afford to create and maintain its own IT system; nor, given parity, would such an approach represent value for money.  There would also be financial implications for the devolved administration of breaking ‘parity’ with the rest of the UK if this resulted in increased expenditure.”

What matters in this context is that the appropriate legislative body has enacted identical provisions with a view to securing the operation of uniform system throughout the UK.

That conclusion accords with the decision of a specially convened Tribunal of Security Commissioners in R (SB) 1/90 (which was also approved by Ward LJ in Deane). In that case the question was whether the Commissioners should follow a decision of the Northern Ireland Court of Appeal on a question about supplementary benefit which was in conflict with an earlier Tribunal decision (R (SB) 10/88). At para. 15 of its decision the Tribunal said:

“Although the social security legislation governing Northern Ireland is not contained in the same Act as applies to Great Britain – and to that extent the position is different from that arising in Re Hartland and Abbott v. Philbin – we nevertheless consider that, where the relevant provisions are identical (as they are in this case), the same judicial approach should equally be adopted. At the end of the day, the legislative fount of the enactments found both in Great Britain and the province of Northern Ireland is the same, namely Parliament at Westminster. Moreover, it would be naturally expected that, where the statutory provisions operative both in Northern Ireland and Great Britain are identical, such provisions should be interpreted uniformly. Support for this contention can also be found in section 142 of the Social Security Act 1975, sub-section (1) of which reads as follows –

‘The Secretary of State may with the consent of the Treasury make arrangements with the Northern Ireland Department (‘the joint arrangements’) for coordinating the operation of this Act and the Social Security (Northern Ireland) Act 1975 with a view to securing that, to the extent allowed for in the arrangements, those Acts provide a single system of social security for the United Kingdom.’

Regulations have been made providing for a substantial degree of assimilation; we refer to the Social Security (Northern Ireland Reciprocal Arrangements) Regulations 1976 [SI 1976 No. 1003]. Manifestly, it is in contemplation that the same social security system should within limits operate both in Northern Ireland and in Great Britain, and in pursuance thereof, it would be natural to suppose that the same interpretation should be given throughout the United Kingdom to identically worded provisions. Accordingly, in our judgment, it is incumbent upon us, particularly as the decision of the Court of Appeal in Ireland was unanimous and notwithstanding that the Court chose not to have R(SB)10/88 argued, to follow that decision rather than that of the Tribunal of Commissioners in England in R(SB)l0/88.”

I return to the point noted at para. 40 above. In my view a judge of the High Court should be even slower than this Court to reach a different conclusion from an appellate Court in Scotland or Northern Ireland on an identical issue about the meaning or effect of UK legislation. The considerations referred to above must have even greater force as between tribunals of different status in the judicial hierarchy. I note that in Re Hartland Swinfen Eady J said (at p. 466):

“Where the exact point has been raised by a special case, and fully argued, and decided by an unanimous judgment of the Court of Session, and where the question is simply one that turns upon the construction of a statute which extends to Scotland as well as to England, I think my duty as a judge of first instance is to follow that decision, leaving the parties, if so advised, to have it reviewed elsewhere.”

For those reasons I do not believe that Kerr J made any error of law in deciding that he should follow O’Donnell unless it was clearly wrong, and I would reject ground 1.

That reasoning has implications for how we should approach the remainder of the grounds. To the extent that it is clear that a particular issue before us was directly considered in O’Donnell our primary focus should be on whether a sufficiently compelling reason has been shown why we should not follow it, although if we have serious doubts about its correctness, albeit falling short of that standard, it will be appropriate for us to express them.

I should note by way of preliminary that doubts have been expressed in the case-law about the utility of the concept of status as an independent element in determining whether there has been a breach of article 14: see, e.g., the observations of Henderson LJ in Stevenson v Secretary of State for Work and Pensions [2017] EWCA Civ 2123, at para. 41. I have some sympathy with those doubts, but it would be wrong in this case to depart from the analysis adopted by the Northern Ireland Court of Appeal in O’Donnell and by Kerr J.

Kerr J followed O’Donnell in identifying the Claimant’s status as “if the deceased was unable to comply with section 31 (1) throughout her working life due to disability”: see para. 9 above. It is convenient to refer to this status simply as “inability to work”, though strictly speaking it relates to inability to undertake paid work to the extent necessary to generate payment of Class 1 or Class 2 contributions.

Mr Sheldon referred to the status so formulated as “disability plus”, to connote the fact that the actual ground of the differential treatment complained of was Suzzi not having paid contributions, albeit that that was a result of her disability. Ms Callaghan put the same point another way by saying that the status on which the Claimant relied was a subset of the broader status of disability. But she said that situations of this kind were not unusual (referring to such cases as Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250) and that the label “disability plus” added nothing useful to the analysis. I agree.

Mr Sheldon’s essential point under ground 2 is that the status relied on in O’Donnell, and in this case, is too uncertain to constitute a valid status for article 14 purposes. He referred to the statement of the European Court of Human Rights in Clift v United Kingdom 7205/07, [2010] ECHR 1106, that article 14 “does not prohibit all differences in treatment but only those differences based on an identifiable, objective or personal characteristic, or ‘status’, by which persons or groups of persons are distinguishable from one another” (see para. 55). He submitted that a status formulated by reference to “inability to work” did not satisfy those requirements, and in particular the requirement of “objectivity”. Inability to work was not “an objectively determinable characteristic”. Determining it would typically require an assessment of the degree of difficulty in working encountered by a disabled person, for which there were no absolute criteria. This objection had apparently not been raised by the DfC in O’Donnell and it is not addressed in the Court’s judgment.

I do not accept Mr Sheldon’s submission. It is true that the concept of “inability” to work will often involve a judgment on matters of degree. The status as advanced is clearly not intended to be confined to cases where claimants were incapable of any purposeful activity (for example, if they are in a coma): the real question is whether the disabilities in question are such that throughout the relevant period they could not reasonably be expected to work (or, to be precise, to do paid work such that they pay the prescribed minimum level of NICs). But many characteristics which are well recognised as potential grounds of discrimination under article 14 are not absolute in character and can typically only be identified by an evaluative exercise. One example is disability (recognised as an “other status” in Guberina v Croatia, 23682/13, (2018) 66 EHRR 11): there are degrees of disability, and it may be necessary in a particular case to carry out an evaluative exercise in order to establish whether a claimant was indeed disabled in the sense relevant to that claim. Another example is what Ms Callaghan referred to as the status of cohabitation, recognised by the Supreme Court in Re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250 (Footnote: ⁶): in a particular case it may well be necessary to make a judgment whether the relationship in question was sufficiently close to amount to cohabitation. In my view an evaluative exercise of the necessary kind can properly be described as objective as long as it consists of a rational evaluation of objectively established facts. There is nothing in Clift that contradicts that approach, which seems to me plainly consonant with the overall purpose of article 14. The issue about status in Clift had nothing to do with objective determinability, and the statement quoted by Mr Sheldon was merely prefatory to a different point.

In the case of inability to work as a result of disability, there can be no conceptual difficulty about making an evaluative determination of that kind. As Ms Callaghan pointed out, such an exercise has long had to be performed for the purpose of determining entitlement to statutory benefits which are dependent on inability, or limited ability, to work (which I will call for short “inability to work benefits”). Entitlement to sickness benefit under sections 10-13 of the National Insurance Act 1946, and subsequently to invalidity benefit under section 3 of the National Insurance Act 1971, required a determination of whether the claimant was “incapable of work”, which was treated in the case-law as referring to “work which he can reasonably be expected to do”. The same was true of entitlement to incapacity benefit under the Social Security (Incapacity for Work) Act 1994. Incapacity benefit was replaced by employment and support allowance under the Welfare Reform Act 2007, section 8 (1) of which defines the relevant test as “whether a person’s capability for work is limited by his physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require him to work”. Essentially the same test is prescribed for the purpose of universal credit by section 37 of the Welfare Reform Act 2012. It is true that at least from 1994 onwards the statutory test has been supplemented by provisions, either in the legislation itself or in regulations, prescribing what factors are to be taken into account in applying the test; but that does not affect the fundamental point that inability to work is recognised as a characteristic that is capable of objective determination.

Mr Sheldon pointed out that the detailed scheme under the Employment and Support Allowance Regulations 2008 contemplates that some people in receipt of benefit might in fact be capable of some kinds of work – see regulations 40 and 45. I accept that, but it does not meet Ms Callaghan’s point. Her case was not that the provisions in question can be regarded as a precise proxy for “inability to work” for the purpose of this claim (though it will be recalled that they were in fact used as a partial proxy in the post-O’Donnell Guidance). The point is, rather, that they demonstrate that there is no inherent objection to treating incapacity for work as an objectively identifiable characteristic. (There is a separate question whether the administrative difficulties resulting from the absence of such a proxy can be relied on by the Secretary of State by way of justification: I will have to return to this later.)

Ms Callaghan also referred us to R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58, [2016] 1 WLR 4550. In that case it was said to be a breach of article 14 not to exclude from the effect of the so-called “bedroom tax” provisions cases where adult partners could not share a bedroom because one of them was disabled or where a child required overnight care. She pointed out that the Secretary of State did not argue in those cases that the relevant characteristics were too uncertain to constitute a relevant status, notwithstanding that they depended on an assessment of whether the partners “could” share a room or of what care was “required”. She also pointed out that when the claims were eventually upheld the Secretary of State enacted Regulations which provided for such assessments to be made on the basis of a reasonableness criterion. The fact that the Secretary of State’s stance on this appeal may not be consistent with his (Footnote: ⁷) stance in other litigation does not really advance the argument; but MA is of some value as an illustration of another case of an “other status” requiring an evaluative exercise.

Mr Sheldon sought to draw support for his submission from the decision of this Court in MOC v Secretary of State for Work and Pensions [2022] EWCA Civ 1, [2022] PTSR 576. The claimant in that case suffered from complex medical conditions and disabilities including cognitive, mental capacity and mental health issues and was entitled to disability living allowance (“DLA”). He claimed that the relevant rule was discriminatory contrary to article 14. The Secretary of State conceded that the claimant had a relevant status, which he formulated as “a severely disabled adult in need of lengthy in-patient hospital treatment”; but the claimant argued that the relevant status should encompass also his lack of mental capacity. The claim was dismissed by both the First-tier Tribunal and the Upper Tribunal. The appeal to this Court was dismissed on the basis that any difference in treatment between the claimant and others not sharing his status was justified, but the Court did also address the issue of status. Singh LJ, who gave the main judgment, said at paras. 64-65:

“64.

The first issue on this appeal is whether there is a relevant ‘status’. Speaking for myself, I was attracted at one time during the hearing to the possibility that the relevant status is a severely disabled person who needs hospital treatment and has a deputy appointed by the Court of Protection. [Counsel for the claimant], however, was not prepared to accept that that was the relevant status.

65.

I have reached the conclusion that the Judge cannot be criticised for reaching the conclusion which he did on the question of status. He was right to observe that the question of capacity as such is not a status. First, the scheme of the 2005 Act was designed to move away from a status-based approach to a functional approach, in other words to focus on particular decisions at a particular time. Secondly, there needs to be reasonable certainty: a person’s capacity may change from time to time and may do so quickly. That is not a sound foundation for the ‘status’ required by Article 14.”

Peter Jackson LJ in his short concurring judgment at para. 76 noted that the appeal did not turn on the issue of status, but he said:

“I agree with Singh LJ (see para. 65) that there are good reasons of principle and practicality why decision-making capacity does not provide a sound foundation for an Article 14 status. In my view, status is likely to be found in the disability itself, and not in the separate matter of capacity, and that is the conclusion to be reached in the present case.”

Andrews LJ agreed with both judgments.

I do not believe that MOC assists Mr Sheldon. Singh LJ’s reasoning is peculiar to the proposed status of lack of capacity under the 2005 Act. The uncertainty which he regarded as fatal was not the fact that a decision about mental capacity involves assessing questions of degree: rather, it was the conceptual uncertainty arising from the fact that under the Act capacity has to be judged by reference to the capacity to take particular kinds of decision at a particular time. The Claimant’s case, by contrast, requires the application of the single criterion of whether Suzzi was unable to work at any point in her working life: if she was able to work for some part of the period but not others, that would cause no difficulty because the criterion is binary and she would fall outside the group.

Mr Sheldon made the point that as a result of changes in technology and patterns of work generally over the past decades a person who by reason of disability might have been unable to work in, say, 1980 might be able to do so today. That is true, but I do not think that it is relevant to the issue of conceptual uncertainty: the same, objective, criterion would be applied to the circumstances as they were at the relevant date, even if it might produce different answers. No doubt changes of this kind might make it more difficult for a decision-maker today to decide whether someone was unable to work forty years ago, and that may be relevant to one aspect of the justification issue (see para. 72 below); but it is not relevant to the issue of status.

I should record that the Court raised with counsel in the course of argument whether Mr Sheldon’s objection based on the uncertainty of the claimed status could be met by reformulating it so that it was specifically tied to the receipt by the deceased of inability to work benefits. Formulating the status in that way would avoid the need for any evaluative determination (albeit only because it adopted the result of a prior evaluation or evaluations). We were told by Ms Callaghan that the Claimant would satisfy a criterion of that kind, since Suzzi had been in receipt of such benefits throughout her working life; and she said that she was prepared to advance his case on that basis if the Court rejected the O’Donnell-based formulation. But she made it clear that she regarded it as less satisfactory in principle because such a status was not an exact proxy for inability to work and its adoption might have unintended and undesirable consequences. It would exclude those who were in fact unable to work but who at some point in their working lives did not claim the benefits in question, for example those between the ages of 16 and 18 or who had spent time overseas. Conversely, it might be over-inclusive, because, as noted in para. 58 above, the rules governing entitlement to such benefits allow claimants in some circumstances to do some paid work and thus to become liable to pay NICs. Mr Sheldon made it clear that he would object to a late reformulation of the case of this fundamental nature, drawing attention to the same problems as Ms Callaghan. I see the force of those objections, and I do not think it is necessary to pursue the question further.

I would accordingly reject ground 2.