The Secretary of State for Work and Pensions v ALC (BB)

The application by the Secretary of State for permission to appeal against the decision of the First-tier Tribunal sitting at Lincoln on 8 December 2023 under file reference SC308/22/00330 was refused by District Tribunal Judge Brassil on 12 July 2023, which decision was issued to the parties on 19 July 2023. On 19 August 2023 the Secretary of State applied to the Upper Tribunal for permission to appeal.

In his application the Secretary of State submitted that

“1.

In accordance with Rule 38 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, the Secretary of State applies for permission to appeal the decision made by the First-tier Tribunal (the Tribunal) on 11/12/2023. The key reason for granting permission is that the Supreme Court will consider precisely this issue on 11^th and 12^th March 2025 and if the Secretary of State wins in the Supreme Court, the respondent’s case must fail.

2.

The background is that the respondent made a claim for Bereavement Support Payment (BSP) on 13/09/21, following his wife’s unfortunate death on 28/08/21. This claim was disallowed as his late wife did not satisfy the contribution condition for BSP. She had not paid any Class 1 or 2 National Insurance Contributions (NICs) during her working life, which begins at the age of 16. This decision to disallow the claim was correct in accordance with Section 31 of the Pensions Act 2014, which provides:

“(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.”

3.

The Tribunal decided to set aside the SSWP’s decision, awarding BSP to the claimant. In their decision notice and statement of reasons, the Tribunal stated they were bound by the decision of the Court of Appeal in Jwanczuk v SSWP [2023] EWCA Civ 1156 (Jwanczuk). In Jwanczuk, it was decided that the contribution condition described above should be treated as met if the deceased was so severely disabled that they were unable to work throughout their entire working life. This decision was supported by the decision of the Court of Appeal in Northern Ireland in O’Donnell v DfC [2020] NICA 36.

4.

The SSWP, in its submission to the Tribunal, requested that this case be stayed due to the ongoing litigation in Jwanczuk. This request was refused by the Tribunal due to the time already taken by the appeal and the low statistical chances of the Jwanczuk appeal being heard by the Supreme Court.

“7.

In the Secretary of State's submission, he sought a stay of these proceedings pending the outcome of the litigation in Jwanczuk. At the time that this submission was written, the case of Jwanczuk had been issued but not yet determined at first instance by the Administrative Court. By the date of the Tribunal hearing, the Secretary of State had lost in the Administrative Court, had lost in the Court of Appeal and had not yet been granted permission (if permission was being sought) to appeal to the Supreme Court. The Supreme Court only hears about 50 cases a year, civil and criminal from all over the UK, Jwanczuk was the 1156^th judgment by the Civil Division of the Court of Appeal for England and Wales alone in 10 months of 2023. In the tribunal's view it was high time that this appeal against a decision made more than two years ago, made progress. If the present appeal goes further and if there is a further appeal in Jwanczuk, the Upper Tribunal will be able to case manage what happens about that further appeal.”

5.

The Supreme Court granted the SSWP permission to appeal the Jwanczuk decision on 8^th March 2024 (see the Order attached). The Supreme Court will hear the case on 11^th and 12^th March 2025.  The Supreme Court is therefore going to consider precisely the same issue as this case – can a claimant be awarded BSP contrary to the wording of s31(1) where the deceased paid no NICs? The outcome of the Supreme Court case will be binding on this appeal. If the Secretary of State wins the case, the respondent’s case must fail.

6.

Even if the Secretary of State does not win the Jwanczuk case, permission should still be granted. This is because the Tribunal have failed to make adequate findings of fact regarding the late spouse’s disability when determining that she was not able to undertake any paid work during her entire working life due to a severe disability. This appears to have been determined solely on the testimony of the respondent, and there is no evidence that he had known the deceased since she was 16.  He stated that he had ‘got together’ with his wife in 2011 when she was aged 27. It is my submission that further findings of fact are required to be made in order to determine if [his wife] was unable to undertake paid work throughout her entire working life and if this was due to a severe disability from the age of 16 or if in fact due to her caring responsibilities for her children.  There is evidence she left school at age 16 to care for her first child. I also submit that there is evidence to suggest that [his wife] had taken part in work experience before leaving school aged 16.

7.

The Tribunal found that [she] had been in receipt of DLA and PIP, but the dates of payment were not established. The Tribunal also concluded without supporting evidence that she did not receive disability benefits early in her life because of the income earned by her two long-term partners. But disability benefits such as DLA and PIP are not means tested and therefore are not a barrier to working and do not enable the accrual of NICs. There are many people who receive DLA and PIP and undertake work. In Jwanczuk, the court relied on evidence that Mrs Jwanczukwas so severely disabled due to a degenerative condition that she was unable to work throughout her entire working life. It is my submission that the Tribunal had insufficient evidence to reach the same conclusion about [the claimant’s wife].

8.

Based on the above, I respectfully request that permission to appeal to the Upper Tribunal (Administrative Appeals) Chamber be granted under rule 39(2) of the First-tier Tribunal Rules 2008.  The Supreme Court case of Jwanczuk on 11^th and 12^th March 2025 will consider precisely the same issue as this case and if the Secretary of State wins, the respondent’s case must fail. I also respectfully request that permission to appeal be granted because even if the Secretary of State loses in Jwanczuk, the Tribunal has failed to make legally adequate findings of fact to support the Tribunal’s conclusion that the Appellant satisfied the test set forth in the non-final Court of Appeal decision in Jwanczuk.”

It seemed to me that there was no point in granting permission to appeal until the outcome of the appeal in Jwanczuk was known. Even were I to grant permission to appeal, I would immediately have stayed all further proceedings in this case until the outcome of that appeal was known.

On 13 September 2024 I directed that all further proceedings in this matter be stayed in the first instance pending the outcome of the appeal to the Supreme Court in the case of Jwanczuk.

The decision in Jwanczuk was promulgated on 20 November 2025.

On 20 November 2025 I lifted the stayon the proceedings and directed the Secretary of State within 1 month to make a submission dealing with the substance of the application and the decision in Jwanczuk.

The Secretary of State replied on 29 December 2026. I gave the Respondent 1 month to reply to that submission, but to date no reply has ben received.

In his submission the Secretary of State submitted that

“3.

In summary, it is submitted that the respondent, [AC], is not entitled to Bereavement Support Payment (BSP), in respect of his late wife, [LC], who sadly passed away on 07/11/2018. This is because she did not satisfy the contribution condition due to not paying any Class 1 or 2 national insurance contributions during her working life.

4.

The SSWP respectfully requested the appeal be stayed to await the outcome of Jwanczuk, which was due to be heard in the Supreme Court. This was because the facts in [the claimant’s] case closely resembled those in Jwanczuk, in that both claimants’ late spouses had not satisfied the contribution condition, having not worked or paid national insurance contributions allegedly (as in the case at hand, the factual findings were not settled) due to their disabilities. This meant that the Supreme Court’s decision in Jwanczuk would have a material effect on the outcome of [the claimant’s] case, and the Upper Tribunal (UT) would be bound by it.

5.

In Jwanczuk, the SSWP appealed against the Court of Appeal’s decision which entitled the respondent, Mr Jwanczuk, to BSP. The Court of Appeal in England had followed the Northern Ireland Court of Appeal’s decision in O’Donnell v Department for Communities [2020] NICA 36 (O’Donnell). In O’Donnell, it was held that the existing legislation in Northern Ireland that provided the contribution condition for BSP, was incompatible with Article 14 of the European Convention on Human Rights (ECHR) and unlawfully discriminated against surviving spouses, civil partners or cohabiting partners of those who could not work due to disability.

6.

The Supreme Court allowed the SSWP’s appeal on 20/11/2025, ruling that Mr Jwanczuk was not entitled to BSP as the contribution condition was not satisfied. They concluded as follows:

“160.

Accordingly, the Secretary of State’s appeal succeeds. The respondent is not entitled to BSP because no actual contributions were paid by Mrs Jwanczuk during her working life. This may seem a harsh decision but, as this court made clear in SC, the risk of undue interference by the courts in the sphere of political choices made by the legislature in the welfare context can only be avoided if the courts respect the boundaries between legality and the political process. There is no proper basis, consistent with the separation of powers, on which to overturn Parliament’s judgement.”

7.

In their ruling, the Supreme Court considered Mr Jwanczuk’s grounds that he had been unlawfully discriminated against because of a failure to treat his situation differently due to his wife’s disability. The Supreme Court determined that, in being refused BSP on the grounds of the contribution condition not being satisfied, he had been treated in the same way as any other widower whose late spouse had not paid National Insurance. They further explained that a failure to treat differently a person in different circumstances, without justification, could amount to a breach of Article 14 of the ECHR:

“119.

Having determined that the respondent has a relevant status for article 14 purposes, there is no dispute that he was treated in the same way (by being refused BSP because of the contribution condition) as any other widower whose deceased spouse made no national insurance contributions for reasons other than a lifelong inability to work. It is conceded that this was treatment in the ambit of A1P1. As we have explained, a breach of article 14 can arise where, without an objective and reasonable justification, there is a failure to treat differently persons whose situations are materially different (Thlimmenos discrimination). In essence therefore, what must be justified is the failure to make an exception from the contribution condition for the surviving spouse of a deceased person with a lifelong inability to work and pay national insurance contributions…”

8.

In determining whether there was an objective and reasonable justification to apply the contribution condition in Mr Jwanczuk’s case and treat him in the same way as those whose partners were not disabled, the Supreme Court (Jwanczuk at ¶121) considered the “Bank Mellat questions” raised by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700. Thefour questions are:

“(1)

whether the objective of the measure is sufficiently important to justify the limitation of a protected right,

(2)

whether the measure is rationally connected to the objective,

(3)

whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and

(4)

whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

9.

To decide if the above “Bank Mellat questions” were satisfied, the Supreme Court assessed the objectives of the contribution condition put forward by the SSWP. The objectives put forward were (as summarized in the Jwanczuk Press Summary and as discussed generally in the Jwanczuk decision at ¶¶128-137):

“(i)

to encourage people to work to make the contributions needed to obtain contributory benefits such as BSP, reducing the stigma of claiming benefits;

(ii)

to simplify the benefit system to reduce administrative cost and complexity; and

(iii)

to ensure greater certainty so that individuals understand what they are entitled to and are able to plan for their financial future.”

10.

The Supreme Court were satisfied that the three aims or objectives presented by the SSWP were “legitimate and rationally connected to the imposition of the contribution condition”. (¶137) They were also satisfied that “the contribution condition is justified and strikes the necessary fair balance in this case”. (¶137) The test for objective and reasonable justification in the “Bank Mellat questions” was therefore satisfied. See generally Jwanczuk at ¶¶138-153.

11.

In summary, the SSWP did not unlawfully discriminate against Mr. Jwanczuk in violation of Article 14 of the ECHR by applying the same conditions of entitlement to BSP to him as others and by not making an exception for those claimants whose spouses could not meet the contribution conditions throughout their working lives due to a disability.

13.

The Jwanczuk Supreme Court decision is dispositive of the case at hand. The respondent’s late wife did not satisfy the contribution condition for BSP, as she did not work or pay any Class 1 or Class 2 national insurance contributions for any tax year in her working life. [The] Respondent alleges this was due to her inability to work because she was disabled. The decision of the SSWP to disallow his claim for BSP on these grounds did not unlawfully discriminate against him, and it was correct to treat him in the same way as any other BSP claimant whose deceased spouse, civil partner or cohabiting partner did not pay the required amount of contributions.

14.

I respectfully submit that the decision of the FtT to allow [the claimant’s] appeal and award BSP was an error of law in light of the Supreme Court’s judgment in Jwanczuk. For this reason, I respectfully request that the decision of the First-tier Tribunal on 11/12/2023 be set aside and the matter be re-determined under section 12(2) of the Tribunal, Courts and Enforcement Act 2007.”

I accept the submission of the Secretary of State.

I am therefore satisfied that the decision of the First-tier Tribunal dated 8 December 2023 under file reference SC308/22/00330 involves an error on a point of law. Permission to appeal against that decision is granted. The appeal against that decision is allowed and the decision of the Tribunal is set aside.

I remake the decision which the Tribunal should have made.

The decision is that the respondent is not entitled to Bereavement Support Payment (BSP) from 28 August 2021 in respect of his late wife who died on 7 November 2018. That is because she did not satisfy the contribution condition due to not paying any Class 1 or 2 national insurance contributions during her working life.