The Secretary of State for Work and Pensions v DF

The application by the Secretary of State for permission to appeal against the decision of the First-tier Tribunal sitting at Brighton on 14 October 2024 under file reference SC322/24/00404 was granted by District Tribunal Judge Curley on 23 December 2024. On 8 January 2025 the Secretary of State sent notice to the Upper Tribunal of the grant of permission to appeal.

In his application the Secretary of State submitted that

“2.

The respondent made a claim for Bereavement Support Payment (BSP) on 06/02/2024, following his wife’s death on 24/01/2024. This claim was disallowed on 08/02/2024 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. The respondent argued that she had been unable to work due to her disability and therefore did not pay into the National Insurance scheme. The 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 set aside the SSWP’s decision, awarding BSP to the respondent. In the Tribunal’s decision notice and statement of reasons, the Judge referred to the decision of the Court of Appeal in Jwanczuk v SSWP [2023] EWCA Civ 1156 (Jwanczuk) and applied the decision in Jwanczuk to this case. In Jwanczuk, however, 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 in the Supreme Court. This request was refused by the Tribunal on the grounds that no date had been set for the hearing. The Statement of Reasons states the following:

“9.

The Tribunal is aware that the Supreme Court has granted permission to the Secretary of State to appeal the decision in the case of Jwanczuk in February 2024 but as yet no date for the matter to be heard has been set.

10.

In considering whether to stay this appeal, the Tribunal considered whether it would be proportionate and [in the] interests of justice to do so. It was unclear how long it will take for the Supreme Court to reach a decision and then for this appeal to be proceed. In the circumstances, the tribunal considered that the fairest course of action would be to decide [the] appeal now rather than adjourn it for an indeterminate length of time. The request to stay was therefore declined.”

5.

The Tribunal will wish to be made aware that the SSWP was notified on 07/08/2024 that a date for the hearing had been set. The Supreme Court will hear the case on 11^th and 12^th March 2025. The Supreme Court is 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 because they were severely disabled and unable to work their entire working life? The outcome of the Supreme Court case will be binding in the case at hand. If the Secretary of State wins the Jwanczuk case, the respondent’s case must fail.

6.

Setting aside the fact that the Jwanczuk case in the Supreme Court will apply to this case, permission to appeal should still be granted. This is because the Tribunal has 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. It is my submission that it is not apparent on which evidence the Tribunal has made this determination. Indeed, it is not clear whether the respondent knew his spouse for her entire working life to make this contention and the Tribunal failed to make sufficient findings of fact on this point. What is clear from the record is that the respondent’s wife did not receive benefits due to her disability throughout her working life. I further submit that the Tribunal failed to ascertain the nature of the disability that the respondent’s wife suffered from and any details as to why or if it was so severe that she would have been unable to work during her entire working life. 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. The SSWP did not concede this required finding in the case at hand, and without sufficient evidence to support the Tribunal’s findings, it is my submission that the Tribunal had insufficient evidence to reach this same conclusion about the respondent’s late wife as was reached in Jwanczuk. Therefore, even if the SSWP were to lose the Jwanczuk case, the Tribunal’s findings cannot support the decision reached.

7.

For the above reasons, Judge Lovett has granted the SSWP permission to appeal. In their decision notice, the Judge accepted that there had been inadequate finding with regard to the deceased’s disabilities:

“5.

Whilst the respondent has said that the determination of Jwanczuk applies in this case and sought a stay on this basis, it is also argued that the respondent did not concede that the nature of [the claimant’s] late wife’s disability meant that she was unable to work her entire working life. There was insufficient evidence in this appeal to support the Tribunal’s conclusion and inadequate findings of fact about the nature of disability or whether [he] knew his late wife for the duration of her working life.

6.

I have considered the Tribunal’s Statement of Reasons. I do not have the audio recording of the hearing which stands as the Record of Proceedings. Having considered the arguments raised above, permission is granted because Jwanczuk has yet to be determined and [the claimant’s] appeal might be distinguished due to the nature of disability and/ or evidence of duration over his wife’s working life."

8.

I therefore respectfully request that the decision of the First-tier Tribunal on 14/10/2024 be set aside and the matter be re-determined under section 12(2) of the Tribunal, Courts and Enforcement Act 2007.”

It seemed to me that the appropriate course was to stay the proceedings until the outcome of the appeal in Jwanczuk was known.

On 31 January 2025 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. On 20 February 2026 the claimant stated that he had no further observations to make and did not want an oral hearing.

In his submission the Secretary of State submitted that

“3.

In summary, it is submitted that the respondent is not entitled to Bereavement Support Payment (BSP), in respect of his late wife, who sadly passed away on 24/01/2024. 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 claimant’s 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 [this] 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.

“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 ground 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 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.

12.

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.

13.

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 14/10/2024 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 14 October 2024 under file reference SC322/24/00404 involves an error on a point of law. 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 24 January 2024 in respect of his late wife who died on 24 January 2024. 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.