Upper Tribunal Grants Bereavement Benefits and Widowed Parent's Allowance

OUTCOME: Allowed

[NAME_1] v Secretary of [NAME_2] ([NAME_3]) [2019] UKUT 144 (AAC)

CG/164/2018 1 DECISION OF [NAME_4] UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

[NAME_4] DECISION of [NAME_4] Upper Tribunal is to allow [NAME_4] appeal by [NAME_4] Appellant.

[NAME_4] decision of [NAME_4] First-tier Tribunal dated 21 September 2017 under file reference SC024/17/05431 involves an error on a point of law. [NAME_4] First-tier Tribunal’s decision is set aside.

[NAME_4] Upper Tribunal can re-make [NAME_4] decision under appeal. [NAME_4] decision that [NAME_4] First-tier Tribunal should have made is as follows:

[NAME_4] of State’s decision of 12 October 2016 is revised. [NAME_4] Appellant is entitled to a bereavement payment and widowed parent’s allowance.

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of [NAME_4], Courts and Enforcement Act 2007.

REASONS FOR DECISION

Introduction 1. This case is about whether [NAME_4] surviving partner of a religious marriage recognised in Pakistan, but not recognised in [NAME_5], is entitled to a bereavement payment and widowed parent’s allowance.

2. I held an oral hearing of this appeal at Field House on 5 April 2019. [NAME_4] Appellant was represented by [NAME_7], acting pro bono and instructed by [NAME_4] [NAME_10]. [NAME_4] Respondent was represented by [NAME_76], instructed by [NAME_4] Government Legal Department. I am indebted to them both for their incisive submissions, both oral and written, which have been of great assistance in determining this complex appeal.

3. It would also be remiss of me not to recognise [NAME_4] efforts of [NAME_4] [NAME_17] throughout these proceedings, who has been fighting his aunt’s corner from [NAME_4] very outset of this matter and represented her before [NAME_4] First-tier Tribunal. If it were not for his commitment and tenacity, I very much doubt we would be where we are today.

4. In [NAME_4] interests of clarity, I refer throughout this decision to [NAME_4] Appellant’s late husband as her husband, even though this may appear from one standpoint to beg [NAME_4] question which lies at [NAME_4] heart of this appeal. I adopt this course as under both [NAME_4] law of Pakistan and under Islamic law there is no argument but that [NAME_4] Appellant was his wife and is now his (sole surviving) widow. In some passages, to aid clarity, I refer to him simply as Mr A. I also use [NAME_4] expression “‘lawful’ widow” in discussion from time to time. This is a shorthand term to describe [NAME_4] surviving (female) spouse of a marriage which is recognised by [NAME_4] [NAME_13]. A ‘lawful’ widow is not necessarily [NAME_4] same as [NAME_4] widow of a monogamous marriage. This is because, as [NAME_14] be seen, our law does recognise polygamous marriages in certain circumstances and for certain purposes. From time to time I also use [NAME_4] term “‘ordinary’ [NAME_15]” – by this I mean a person living with another as husband and wife without any attempt to have that relationship formalised, e.g. through a religious ceremony, whether here or abroad.

CG/164/2018 2 5. I should also add that I held an earlier hearing of this appeal on 11 February 2019, but without full argument. That hearing was adjourned to 5 April 2019 as [NAME_4] of State had not had sufficient time to prepare a full response to [NAME_4] human rights submissions advanced on behalf of [NAME_4] Appellant. [NAME_4] of State subsequently applied for a stay of [NAME_4] present appeal pending [NAME_4] outcome of judicial review proceedings in [NAME_4] in [NAME_4] case of R (on [NAME_4] application of [NAME_16]) v Upper Tribunal and Secretary of [NAME_2] (CO/3704/2017). I refused that application in a ruling dated 4 March 2019 for three main reasons: (i) although both cases concerned Islamic marriages, [NAME_4] marriage in [NAME_16] had taken place in England, so raising issues of validity under [NAME_4] Act 1949 which did not arise in [NAME_4] present appeal; (ii) [NAME_4] special regulations governing polygamous marriages and social security benefits were not in issue in [NAME_16]; and (iii) [NAME_16] was exclusively concerned with widowed parent’s allowance, whereas [NAME_4] instant appeal is about both widowed parent’s allowance and bereavement payment.

[NAME_4] factual background to [NAME_4] present appeal 6. [NAME_4] underlying facts in this appeal are not in dispute. [NAME_4] Appellant’s husband, Mr A, was born in Pakistan in 1958. On 1 July 1976, at [NAME_4] age of 17, Mr A, then a bachelor, married his first wife, Ms B (who was also 17), in Pakistan. [NAME_4] same month, and having turned 18, Mr A moved to [NAME_4] UK to live with his parents. In 1979 Ms B moved to [NAME_4] UK to join him. Although there were doubtless visits to Pakistan, it seems that Mr A made his home in [NAME_4] UK. In 1993 he became a British citizen. However, in 2001 he pronounced a talaq, with [NAME_4] intention of divorcing Ms B, and [NAME_4] couple separated. On 28 November 2008 Mr A married [NAME_4] Appellant in Pakistan. A year later, following proceedings in [NAME_4], Mr A obtained a decree absolute of divorce from Ms B. In December 2010 [NAME_4] Appellant moved to [NAME_4] UK to live with Mr A. In May 2011 Ms B died. Mr A and [NAME_4] Appellant had a daughter, born in [DATE], but on 18 July 2016 Mr A died. By that date [NAME_4] Appellant had been married to Mr A in [NAME_4] eyes of Islamic law for eight years and had been his only living spouse for five years. On that basis [NAME_4] Appellant claimed bereavement benefits. After initially deciding that she was entitled to such benefits, one of [NAME_4] of State’s decision-makers issued a revised decision refusing [NAME_4] Appellant’s claim.

[NAME_4] First-tier Tribunal’s decision 7. [NAME_4] First-tier Tribunal (FTT) dismissed [NAME_4] Appellant’s appeal. This was on [NAME_4] basis, according to [NAME_4] decision notice, that “[NAME_4] appellant’s marriage was a polygamous marriage when entered into and is therefore not valid under English law”. [NAME_4] essence of [NAME_4]’s reasoning was captured in paragraph [15] of [NAME_4] subsequent statement of reasons:

“In accordance with [NAME_4] Act 1949 [NAME_4] marriage to [NAME_4] appellant in 2008 was polygamous as at [NAME_4] date of his second marriage he was still married to his first wife, that first marriage being valid under Pakistani law and accepted as valid under English law as it was at [NAME_4] date of [NAME_4] marriage monogamous and took place in accordance with [NAME_4] law of Pakistan. [NAME_4] marriage to [NAME_4] appellant in 2008 was polygamous as [Mr A] was still married to [Ms B] and as English law does not recognise polygamous marriages and we are satisfied on [NAME_4] facts set out above that [Mr A] was clearly domiciled in [NAME_4] UK at [NAME_4] time of [NAME_4] second marriage and did not have [NAME_4] capacity to enter into [NAME_4] polygamous marriage as these are invalid when entered into under English law.”

8. [NAME_4] accordingly concluded that “[NAME_4] appellant was not lawfully married to [Mr A] and [NAME_4] fact that [Mr A] subsequently divorced his first wife under English law

CG/164/2018 3 does not change that fact” (statement of reasons at paragraph [21]). [NAME_4] also dismissed [NAME_4] argument advanced by [NAME_4] [NAME_17] that she had been unjustifiably discriminated against on [NAME_4] grounds of her marital status. [NAME_4] concluded that [NAME_4] of State’s decision did not breach [NAME_4] Appellant’s rights under Article 8 of [NAME_4] [NAME_18] (referred to in this decision as [NAME_4], or simply ‘[NAME_4]’) in [NAME_4] light of [NAME_4] exceptions in Article 8(2). In support, [NAME_4] cited [NAME_4] proposition that “[NAME_4] refusal of a benefit in accordance with [NAME_4] law cannot constitute an interference with [NAME_4] claimant’s private and family life, her home or correspondence”. This was (wrongly) attributed to [NAME_4]’s judgment in R (on [NAME_4] application of [NAME_19]) v Secretary of [NAME_2] [2002] EWHC 426 (Admin). In fact, [NAME_4] proposition was expressed in those terms in [NAME_4] course of [NAME_4] of State’s supplementary submission to [NAME_4].

9. I subsequently granted [NAME_4] Appellant permission to appeal to [NAME_4] Upper Tribunal.

A summary of Upper Tribunal’s decision and [NAME_4] structure of these reasons 10. Not everyone [NAME_14] wish to read to [NAME_4] end of what is necessarily a lengthy decision. I therefore summarise [NAME_4] gist of my decision here. I accept [NAME_20]’s submission that [NAME_4] State’s refusal to provide [NAME_4] Appellant with a bereavement payment is contrary to Article 14 of [NAME_4] read in conjunction with [NAME_21]. [NAME_4] bereavement payment is within [NAME_4] ambit of Article 14, [NAME_4] Appellant is in an analogous situation to a ‘lawful’ widow and [NAME_4] difference in treatment is not objectively justified or proportionate. [NAME_4] same is true as regard [NAME_4] refusal of WPA, but in any event [NAME_4] Appellant is [NAME_4] victim of unlawful discrimination on [NAME_4] same basis as [NAME_4] applicant in Re [NAME_22]. I further conclude, for [NAME_4] purposes of [NAME_4] Appellant’s entitlement to both bereavement payment and widowed parent’s allowance, that [NAME_4] relevant secondary legislation ([NAME_4] Security and Family Allowances (Polygamous Marriages) Regulations 1975 (SI 1975/561)) can be read down under section 3 of [NAME_4] Act 1998 so as to be Convention- compliant. I therefore allow [NAME_4] Appellant’s appeal to [NAME_4] Upper Tribunal, set aside [NAME_4] decision of [NAME_4] First-tier Tribunal and re-make [NAME_4] decision under appeal in [NAME_4] terms set out above.

[NAME_4] shifting framework of provision for bereavement benefits 11. Widows’ benefits date back to [NAME_4] early years of [NAME_4] modern Welfare State (see [NAME_4]’, Orphans’ and Old Age Contributory Pensions Act 1925) and were a central feature of [NAME_4] national insurance scheme which came into being in 1948. Social changes have been such that widows’ benefits have diminished in significance in recent years (see [NAME_4] illuminating discussion by Baroness Hale in Re [NAME_22] [2018] UKSC 48; [2018] 1 WLR 4250 at paragraphs 4-12). For present purposes it is sufficient to note [NAME_4] last three decades have seen three major reforms to provision for [NAME_4] bereaved by way of social security benefits.

12. First, in [NAME_4] period after 11 April 1988, and following [NAME_4] Security Act 1986, there were three principal social security benefits available to widowed women, each of which was based on [NAME_4] National Insurance contributions record of [NAME_4] late husband rather than that of [NAME_4] widow herself. These were (1) a Widow’s Payment (a single, tax-free payment of £1,000); (2) Widowed Mother’s Allowance (WMA) (a taxable weekly benefit for widows with dependent children, which ended when [NAME_4] youngest child ceased to be a dependant); and (3) a Widow’s Pension (a taxable weekly benefit for widows who were not entitled to WMA or whose WMA had ceased). Entitlement to both [NAME_4]’s Pension ended if [NAME_4] widow re- married, and neither benefit was payable for any periods during which she and a man lived together as husband and wife. Similarly, a Widow’s Payment was not payable if,

CG/164/2018 4 at [NAME_4] time of her husband’s death, she and another man were living together as husband and wife.

13. Secondly, [NAME_4] Act 1999 brought in changes with effect from 9 April 2001 and made [NAME_4] scheme gender neutral. [NAME_4] main changes were that [NAME_4]’s Payment was replaced by a Bereavement Payment of £2,000, paid to both widows and widowers on bereavement. In turn WMA was replaced by a Widowed Parent’s Allowance (WPA), for which entitlement continued until [NAME_4] youngest (or only) dependent child was aged 16 (or up to age 19 if still in full-time further education). [NAME_4]’s Pension was replaced by Bereavement Allowance, a weekly age-related benefit payable for one year only, for widows and widowers aged 45 and over with no dependent children.

14. Thirdly, since 6 April 2017 [NAME_4] tripartite benefits structure in place since 1988 has been abolished. [NAME_4] only remaining contributory benefit in this area is [NAME_4] bereavement support payment, comprising a lump sum payment in [NAME_4] first month and then monthly payments payable thereafter for a maximum period of 18 months.

15. Access to bereavement benefits has always been governed by marital status and by what [NAME_4] Department refers to as a “bright line rule”. However, that boundary has shifted over time, recognising wider social changes. Initially, benefits were only available to widows. Later, and recognising [NAME_4] (at that time) indirect effects of [NAME_4], bereavement provision was widened to include widowers. Later still, [NAME_4] scope of those bereaved persons who were entitled was extended to cover civil partners. Historically both [NAME_4] Department and Parliament have always resisted attempts to bring cohabitants1 within [NAME_4] remit of bereavement benefits, although this policy has now had to be reconsidered in [NAME_4] light of [NAME_4] [NAME_23]’s decision in Re [NAME_22], to which I return further below. For [NAME_4] present it is instructive to turn first to [NAME_4] relevant provisions of [NAME_4] and domestic legislation.

[NAME_4] [NAME_18] 16. Article 8 of [NAME_4] declares as follows:

Right to respect for private and family life

1. Everyone has [NAME_4] right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with [NAME_4] exercise of this right except such as is in accordance with [NAME_4] law and is necessary in a democratic society in [NAME_4] interests of national security, public safety or [NAME_4] economic well-being of [NAME_4] country, for [NAME_4] prevention of disorder or crime, for [NAME_4] protection of health or morals, or for [NAME_4] protection of [NAME_4] rights and freedoms of others.

17. Article 14 further provides that:

Prohibition of discrimination

[NAME_4] enjoyment of [NAME_4] rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour,

1 I noted both counsel tended to use [NAME_4] term “[NAME_24]”; I prefer to use [NAME_4] gender-neutral expression “[NAME_15]”, whilst recognising that in practice most surviving partners of cohabiting relationships who seek to claim bereavement benefits [NAME_14] be female.

CG/164/2018 5 language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

18. Article 1 of Protocol 1 (‘[NAME_21]’) is in these terms:

Protection of property

Every natural or legal person is entitled to [NAME_4] peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in [NAME_4] public interest and subject to [NAME_4] conditions provided for by law and by [NAME_4] general principles of international law. [NAME_4] preceding provisions shall not, however, in any way impair [NAME_4] right of a State to enforce such laws as it deems necessary to control [NAME_4] use of property in accordance with [NAME_4] general interest or to secure [NAME_4] payment of taxes or other contributions or penalties.

[NAME_4] social security primary legislation governing bereavement benefits 19. It [NAME_14] be recalled that [NAME_4] Appellant’s husband died in 2016 and she made her claim for bereavement benefits shortly afterwards. As such, [NAME_4] question of [NAME_4] Appellant’s entitlement is governed by [NAME_4] social security legislation then in force (which provided for [NAME_4] benefits summarised in paragraph 13 above). Entitlement to [NAME_4] bereavement payment at that date was expressed by section 36 of [NAME_4] Security Contributions and Benefits Act 1992 (“[NAME_4] [NAME_25]”) in [NAME_4] following terms:

Bereavement payment 36.— (1) A person whose spouse or civil partner dies on or after [NAME_4] appointed day shall be entitled to a bereavement payment if— (a) either that person was under pensionable age at [NAME_4] time when [NAME_4] spouse or civil partner died or [NAME_4] spouse or civil partner was then not entitled to a Category A retirement pension under section 44 below or a state pension under Part 1 of [NAME_4] Act 2014; and (b) [NAME_4] spouse or civil partner satisfied [NAME_4] contribution condition for a bereavement payment specified in Schedule 3, Part I, paragraph 4. (2) A bereavement payment shall not be payable to a person if that person and a person whom that person was not married to, or in a civil partnership with, were living together as a married couple at [NAME_4] time of [NAME_4] spouse's or civil partner's death. (3) In this section “[NAME_4] appointed day” means [NAME_4] day appointed for [NAME_4] coming into force of sections 54 to 56 of [NAME_4] Act 1999.

20. Entitlement to widowed parent’s allowance was governed by section 39A of [NAME_4] [NAME_25]. So far as is material, section 39A at that time provided as follows:

Widowed parent's allowance

39A.—(1) This section applies where— (a) a person's spouse or civil partner has died before [NAME_4] day on which section 30 of [NAME_4] Act 2014 comes into force (but see subsection (1A)), (b) [NAME_4] person has not married or formed a civil partnership after [NAME_4] death but before that day, and (c) [NAME_4] person is under pensionable age on that day. (1A) This section does not apply in cases where a woman's husband has died before 9 April 2001. (2) [NAME_4] surviving spouse or civil partner shall be entitled to a widowed parent's allowance at [NAME_4] rate determined in accordance with section 39C below if [NAME_4]

CG/164/2018 6 deceased spouse or civil partner satisfied [NAME_4] contribution conditions for a widowed parent's allowance specified in Schedule 3, Part I, paragraph 5 and— (a) [NAME_4] surviving spouse or civil partner is entitled to child benefit in respect of a child or qualifying young person falling within subsection (3) below; (b) …

(c) … (3) A child or qualifying young person falls within this subsection if [NAME_4] child or qualifying young person is either— (a) a son or daughter of [NAME_4] surviving spouse or civil partner and [NAME_4] deceased spouse or civil partner; or (b) a child or qualifying young person in respect of whom [NAME_4] deceased spouse or civil partner was immediately before his or her death entitled to child benefit; or (c) if [NAME_4] surviving spouse or civil partner and [NAME_4] deceased spouse or civil partner were residing together immediately before his or her death, a child or qualifying young person in respect of whom [NAME_4] surviving spouse or civil partner was then entitled to child benefit. (4) [NAME_4] surviving spouse shall not be entitled to [NAME_4] allowance for any period after she or he remarries or forms a civil partnership, but, subject to that, [NAME_4] surviving spouse shall continue to be entitled to it for any period throughout which she or he— (a) satisfies [NAME_4] requirements of subsection (2)(a) or (b) above; and (b) is under pensionable age.

21. [NAME_4] scope of this appeal is restricted to [NAME_4] law as it stood before 6 April 2017, and I therefore heard no argument on [NAME_4] position under [NAME_4] current primary legislation, I simply note that entitlement to [NAME_4] new bereavement support payment is restricted to where a person’s “spouse or civil partner dies” (Pensions Act 2014, section 30(1)(a)). There is no reason why this phrase should be read any differently to [NAME_4] same expression as used in sections 36(1) and 39A(1)(a) of [NAME_4] [NAME_25], as those provisions are in issue in [NAME_4] present appeal, and every reason why it should be read in [NAME_4] same way.

22. Before turning to consider [NAME_4] other relevant statutory provisions, this is a convenient juncture at which to summarise [NAME_4] [NAME_23]’s decision in Re [NAME_22].

[NAME_4] decision of [NAME_4] [NAME_23] in Re [NAME_22] 23. [NAME_26] had never married her partner but had lived with him as husband and wife for 23 years. Her partner died in January 2014, leaving her with their four children aged 19, 17, 13 and 11. She was refused bereavement benefit and WPA on [NAME_4] grounds that sections 36 and 39A of [NAME_4] Security Contributions and Benefits (Northern Ireland) Act 1992 – to all intents and purposes identical to sections 36 and 39A of [NAME_4] [NAME_25] in Great Britain – only provide for entitlement for a spouse or civil partner, and not for a long-term unmarried [NAME_15].

24. Treacy J, sitting in [NAME_4] in Northern Ireland ([2016] NIQB 11), ruled that [NAME_26]’s claim for bereavement benefit must fail. However, Treacy J also held that (i) WPA was paid to diminish [NAME_4] financial hardship on families consequent upon [NAME_4] death of one of [NAME_4] parents; (ii) it was not justifiable to discriminate between cohabitants and spouses or civil partners in [NAME_4] context of WPA; and (iii) therefore section 39A of [NAME_4] Ireland legislation was incompatible with article 14 of [NAME_4]. Treacy J’s judgment was overturned by [NAME_4] of Appeal of Northern Ireland ([2016] NICA 53), but that decision in turn was

CG/164/2018 7 reversed by [NAME_4] [NAME_23] in a judgment handed down on 30 August 2018 (Re [NAME_22] [2018] UKSC 48; [2018] 1 WLR 4250). [NAME_4] [NAME_23] (Lord Hodge dissenting) held that [NAME_4] refusal of WPA to a woman who was not married to [NAME_4] deceased father of their children was incompatible with article 14 of [NAME_4]. [NAME_4] [NAME_23] accordingly made a declaration of incompatibility under section 4 of [NAME_4] Act 1998 in respect of section 39A of [NAME_4] Ireland legislation.

25. In delivering [NAME_4] leading judgment, Baroness Hale of Richmond addressed [NAME_4] four central questions (summarised in these terms at paragraph 15):

“(1) Do [NAME_4] circumstances ‘fall within [NAME_4] ambit’ of one or more of [NAME_4] rights? (2) Has there been a difference in treatment between two persons who are in an analogous situation? (3) Is that difference of treatment on [NAME_4] ground of one of [NAME_4] characteristics listed or ‘other status’?

(4) Is there an objective justification for that difference in treatment?”

26. For present purposes it is sufficient to note that [NAME_4] answers of [NAME_4] majority of [NAME_4] [NAME_23] to those questions in Re [NAME_22] were, in short: (1) Yes; (2) Yes; (3) Yes; and (4) No.

Other relevant statutory provisions Introduction 27. [NAME_4] social security primary legislation governing bereavement benefits has been set out above. This appeal also requires consideration of two other sources of domestic statutory provisions. One is [NAME_4] primary legislation governing [NAME_4] validity of marriages under [NAME_4] [NAME_13]. [NAME_4] other is [NAME_4] secondary social security legislation that deals specifically with [NAME_4] position of polygamous marriages.

Primary legislation on [NAME_4] validity of marriages under [NAME_4] [NAME_13] 28. This is not [NAME_4] place for a treatise on [NAME_4] circumstances under which [NAME_4] matrimonial law of England and Wales2 recognises [NAME_4] validity of a marriage. Suffice to say that section 11 of [NAME_4] Act (‘MCA’) 1973 sets out [NAME_4] only grounds on which a marriage is void:

Grounds on which a marriage is void 11. A marriage celebrated after 31st July 1971, other than a marriage to which section 12A applies, shall be void on [NAME_4] following grounds only, that is to say— (a) that it is not a valid marriage under [NAME_4] provisions of [NAME_4] 1949 to 1986 (that is to say where— (i) [NAME_4] parties are within [NAME_4] prohibited degrees of relationship; (ii) either party is under [NAME_4] age of sixteen; or (iii) [NAME_4] parties have intermarried in disregard of certain requirements as to [NAME_4] formation of marriage); (b) that at [NAME_4] time of [NAME_4] marriage either party was already lawfully married or a civil partner; (c) [repealed]

2 I use [NAME_4] geographical and jurisdictional expression advisedly, in recognition that family law (and especially [NAME_4] law of marriage and nullity) in Scotland is different in several important respects.

CG/164/2018 8 (d) in [NAME_4] case of a polygamous marriage entered into outside [NAME_5], that either party was at [NAME_4] time of [NAME_4] marriage domiciled in [NAME_5].

For [NAME_4] purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to [NAME_4] other.

29. [NAME_4] final deeming provision relating to paragraph (d), as originally enacted, read as follows: “For [NAME_4] purposes of paragraph (d) of this subsection a marriage may be polygamous although at its inception neither party has any spouse additional to [NAME_4] other” but was amended by paragraph 2(2) of Schedule 1 to [NAME_4] (Miscellaneous Provisions) Act 1995. [NAME_4] effect of that amendment would appear to be to clarify [NAME_4] position (and confirm beyond any doubt [NAME_4] validity of [NAME_4] marriage) of e.g. an English-domiciled bachelor who travels to Pakistan to contract an Islamic marriage with an unmarried woman.

30. That deeming provision aside, [NAME_4] proper interpretation of section 11(d) has at times been undeniably problematic (see e.g. Hussein v Hussein [1983] Fam 263). However, it is tolerably clear that some polygamous marriages [NAME_14] survive section 11(d):

“[NAME_4] implicit corollary of section 11(d) of [NAME_4] 1973 Act is that where neither party is domiciled in [NAME_4] UK at [NAME_4] time of [NAME_4] relevant polygamous marriage, valid under [NAME_4] law of [NAME_4] place of celebration, then that marriage – assuming no other incapacity – [NAME_14] be recognised as valid in English law.”4

Secondary social security legislation dealing with polygamous marriages 31. Section 162 of [NAME_4] Security Act 1975 (which has now been superseded in rather different terms by section 121 of [NAME_4] [NAME_25]) provided for an enabling power in [NAME_4] following terms:

Treatment of certain marriages

162.– Regulations may provide— (a) for a voidable marriage which has been annulled, whether before or after [NAME_4] date when [NAME_4] regulations come into force, to be treated for [NAME_4] purposes of such provisions of, or of any regulations under, this Act, subject to such exceptions or conditions as may be prescribed, as if it had been a valid marriage which was terminated by divorce at [NAME_4] date of annulment;

(b) as to [NAME_4] circumstances in which, for [NAME_4] purposes of this Act—

(i) a marriage celebrated under a law which permits polygamy, or (ii) any marriage during [NAME_4] subsistence of which a party to it is at any time married to more than one person, is to be treated as having, or not having, [NAME_4] consequences of a marriage celebrated under a law which does not permit polygamy; and regulations made for [NAME_4] purposes of subsection (b) above may make different provision in relation to different purposes and circumstances.

3 [NAME_27], “Polygamous Marriages and English Domiciliaries” (1983) 32 International and Comparative Law Quarterly 737-741. 4 R v Bala [2016] EWCA Crim 560; [2017] QB 430 at paragraph 67. And see also s.5 of [NAME_4] (Miscellaneous Provisions) Act 1995.

CG/164/2018 9 32. In [NAME_4] exercise of [NAME_4] power under section 162(b), [NAME_4] then Secretary of State for Social Services made [NAME_4] Security and Family Allowances (Polygamous Marriages) Regulations 1975 (SI 1975/561; “[NAME_4] 1975 Regulations”), a short statutory instrument containing just three provisions. Regulation 1 deals with citation, commencement and interpretation, regulation 2 with [NAME_4] “General rule as to [NAME_4] consequences of a polygamous marriage for [NAME_4] purpose of [NAME_4] Security Act and [NAME_4] Family Allowances Act” and regulation 3, which is not relevant here, with special rules for retirement pension for women. For present purposes [NAME_4] key provisions are [NAME_4] definitions in regulation 1(2) and [NAME_4] “general rule” in regulation 2. According to regulation 1(2):

“(2) In these Regulations, unless [NAME_4] context otherwise requires–

…

“polygamous marriage” means a marriage celebrated under a law which, as it applies to [NAME_4] particular ceremony and to [NAME_4] parties thereto, permits polygamy;

“monogamous marriage” means a marriage celebrated under a law which does not permit polygamy, and “in fact monogamous” is to be construed in accordance with regulation 2(2) below;

33. Regulation 2 then provides as follows:

General rule as to [NAME_4] consequences of a polygamous marriage for [NAME_4] purpose of [NAME_4] Security Act and [NAME_4] Family Allowances Act 2. (1) Subject to [NAME_4] following provisions of these regulations, a polygamous marriage shall, for [NAME_4] purpose of [NAME_4] Security Act and [NAME_4] Family Allowances Act and any enactment construed as one with those Acts, be treated as having [NAME_4] same consequences as a monogamous marriage for any day, but only for any day, throughout which [NAME_4] polygamous marriage is in fact monogamous.

(2) In this and [NAME_4] next following regulation— (a) a polygamous marriage is referred to as being in fact monogamous when neither party to it has any spouse additional to [NAME_4] other; and (b) [NAME_4] day on which a polygamous marriage is contracted, or on which it terminates for any reason, shall be treated as a day throughout which that marriage was in fact monogamous if at all times on that day after it was contracted, or as [NAME_4] case may be, before it terminated, it was in fact monogamous.

[NAME_4] legal consequences of [NAME_4] factual background 34. [NAME_4] underlying facts of this appeal (see paragraph 6 above), conventional wisdom would suggest [NAME_4] following analysis.

35. [NAME_4] 1976 marriage in Pakistan to Ms B: this would appear to have been a valid marriage under [NAME_4] law of Pakistan and hence also recognised by [NAME_4] [NAME_13] as a valid marriage. At an earlier stage in [NAME_4] proceedings, [NAME_4] [NAME_17] had raised a question mark over [NAME_4] validity of this marriage, given [NAME_4] parties were both under age at [NAME_4] time. However, as I noted in earlier observations on [NAME_4] appeal, [NAME_4] Child Marriage Restraint Act 1929 of Pakistan sets out a series of sanctions to discourage child marriages, but does not appear to say anything about [NAME_4] legal validity of such marriages. Moreover, as [NAME_4] standard work (in English at

CG/164/2018 10 least) notes, “such marriages have consistently been recognised as legally valid” ([NAME_75] and [NAME_30], Muslim Family Law (1998), p.155; [NAME_4] authors cite [NAME_4] decision of [NAME_4] [NAME_23] of Pakistan in [NAME_32] v [NAME_33] P.L.D. 1970 S.C. 323).5 [NAME_4] issue of [NAME_4] validity of [NAME_4] first marriage has not been further pursued in this appeal.

36. [NAME_4] 2001 talaq in [NAME_4]: a marriage cannot be dissolved in proceedings in this country under [NAME_4] [NAME_13] unless those proceedings are in a court of law (Domicile and Matrimonial Proceedings Act 1973, section 16). Mr A (and indeed Ms B) may well have assumed that as he had married Ms B in an Islamic ceremony under [NAME_4] law of Pakistan then it followed that he could divorce her by talaq without resort to [NAME_4] courts of his adopted home country. If so, he was mistaken. So, [NAME_4] 2001 talaq was ineffective and [NAME_4] couple remained married in [NAME_4] eyes of [NAME_4] [NAME_13], although they had in fact separated.

37. [NAME_4] 2008 marriage in Pakistan to [NAME_4] Appellant: [redacted] was valid according to [NAME_4] law of Pakistan and Islamic law. [NAME_4] parties were recognised as husband and wife by their families and in their community. However, [NAME_20] concedes that as Mr A was by this date domiciled in [NAME_4] UK, [NAME_4] 2008 marriage was void for [NAME_4] purposes of [NAME_4] [NAME_13] (see section 11(d) of [NAME_4] 1973).

38. [NAME_4] 2010 divorce from Ms B in [NAME_4]: [NAME_4] decree absolute regularised Mr A’s separation from Ms B. [NAME_4] divorce added [NAME_4] official imprimatur of [NAME_4] to [NAME_4] earlier Islamic talaq. However, that English divorce was only effective from [NAME_4] date of [NAME_4] decree absolute. It may well have been enough to regularise [NAME_4] Appellant’s status for immigration purposes, so that she was able to join Mr A in [NAME_4] UK. However, it did not have [NAME_4] effect of retrospectively validating their 2008 marriage in [NAME_4] eyes of domestic law here. [NAME_20] expressly acknowledged that there was insufficient material to run a “legitimate expectation” argument.

39. I should add there is no suggestion that Mr A in any way sought to avoid [NAME_4] proper legal processes in terms of his matrimonial affairs. He appears to have sought advice at various stages but unfortunately appears not to have been given complete or completely accurate advice. [NAME_4] legal complications and technicalities involved in such matters, this may not be surprising.

40. So where did all this leave [NAME_4] position of [NAME_4] Appellant? According to [NAME_4] Respondent, [NAME_4] short answer to this appeal was that [NAME_4] Appellant was not Mr A’s spouse at [NAME_4] time of his death. Rather, she was his unmarried partner, because their polygamous marriage was void and so of no effect under our domestic law. [NAME_4] essence of [NAME_4] of State’s submission is summed up in paragraph 10250 of [NAME_4] Decision Makers Guide, published by [NAME_4] Department for Work and Pensions. Chapter 10 of this guidance deals with evidence of age, marriage and death, and paragraph 10250 states that “A void marriage cannot be treated as valid under any circumstances. For benefit purposes it must be regarded as never having existed.” [NAME_4] guidance gives R(G)3/59, a decision of [NAME_4] [NAME_34] (a forerunner of [NAME_4] Upper Tribunal), as authority for that proposition. I recognise Ms

5 See to similar effect [NAME_36], ‘Sawāra Marriages and Related Legal Issues’ Islamabad Law Review (Vol. 1, no.1) at p.51: “[NAME_4] Child Marriage Restraint Act does not declare such marriage void so a child marriage itself is valid”.

CG/164/2018 11 [NAME_9]’s point that [NAME_4] Decision Makers Guide is in principle no more than official guidance, so it is important to identify [NAME_4] principle for which R(G)3/59 stands.

41. In R(G)3/59 [NAME_4] claimant was [NAME_4] innocent victim of a bigamous marriage (such a marriage is void under what is now section 11(b) of [NAME_4] 1973). She subsequently claimed a child’s special allowance on [NAME_4] death of her partner. Regulations made provision for a voidable marriage which had been annulled to be treated as a valid marriage for [NAME_4] purposes of such a claim. [NAME_4] [NAME_34] ruled that her claim failed as “[NAME_4] claimant’s so called marriage was not a voidable marriage which was annulled, but a void marriage from [NAME_4] beginning, although she was unaware that it was. Accordingly there was no marriage” (at paragraph 5). That analysis is entirely consistent with traditional legal doctrine in [NAME_4] context of nullity of marriage – in sum, void marriages are void from [NAME_4] start and never existed, whereas voidable marriage are valid until annulled. R(G)3/59, of course, was about a bigamous marriage (unwittingly, from [NAME_4] claimant’s perspective) but [NAME_4] same reasoning applies in principle to a marriage which is void under section 11(d) as under section 11(b) – or, for that matter, section 11(a).

42. Other than a passing reference to R(G)3/59, [NAME_4] jurisprudence of [NAME_4] former National Insurance Commissioners and Social Security Commissioners and now [NAME_4] Upper Tribunal (Administrative Appeals Chamber) did not feature prominently in [NAME_4] submissions of counsel. This may well be because there was no real dispute as to [NAME_4] existing line of authority in [NAME_4] case law. So, for example, [NAME_39] referred me to ES v Secretary of [NAME_2] [2010] UKUT 200 (AAC), in which Upper Tribunal Judge Levenson held that “spouse” in section 36 of [NAME_4] [NAME_25] meant “a person married in [NAME_4] conventional sense to [NAME_4] other spouse following a proper legally recognised ceremony” (at paragraph 16), so excluding a long-term unmarried partner. In holding as such, Judge Levenson in effect followed [NAME_4] reported Social Security [NAME_35]’s decision R(G) 1/04, where it was held that “widow” did not include a surviving [NAME_15]. Such decisions must now be read in [NAME_4] light of Re [NAME_22], insofar as that case is relevant.

43. I was not taken by counsel to any of [NAME_4] jurisprudence in this jurisdiction (or its predecessors) on [NAME_4] validity of polygamous marriages entered into abroad. Again, this may well be because [NAME_4] line of authority is undisputed. Secretary of State for Work and Pensions v MN (BB) [2018] UKUT 68 (AAC) may be a case in point. This was a decision of mine which I must confess I had entirely forgotten about until I came to writing up this judgment.6 In that case [NAME_4] claimant, Mrs N, as here, was Mr S’s second wife. Mr S married his first wife, Mrs B, in Bangladesh in 1959. Mr S came to [NAME_4] UK in 1963 and in 1983 returned to Bangladesh to marry [NAME_4] claimant. Mrs B ([NAME_4] first wife) died in 1997 and in 2003 Mrs N arrived in [NAME_4] UK to live with Mr S. He died in April 2016 and Mrs N applied for bereavement benefit. Her claim was refused on [NAME_4] ground that her marriage to Mr S was not a valid marriage under domestic law. A First-tier Tribunal allowed Mrs N's appeal finding that, at [NAME_4] time of Mr S's death, he only had one wife and therefore he and Mrs N were not in a polygamous marriage. [NAME_4] of State then appealed to [NAME_4] Upper Tribunal. [NAME_4] claimant was unrepresented and no human rights arguments were ventilated in that appeal.

44. [NAME_4] of State’s appeal in that case, I referred to section 11(d) of [NAME_4] 1973 and observed as follows:

6 I have not asked for further submissions on this case given it did not address any human rights arguments.

CG/164/2018 12

“16. It is accepted that Mr S’s second marriage in 1983 was valid under Islamic law and [NAME_4] law of Bangladesh, which permits polygamy. However, by virtue of section 11(d) of [NAME_4] 1973 Act, it follows that if at [NAME_4] time of his second marriage Mr S was domiciled in [NAME_4], then under [NAME_4] [NAME_13] he had no capacity to marry Mrs N. So, while valid by local law, [NAME_4] marriage would be void under English (and Welsh) law as ‘at its inception’ Mr S did have ‘any spouse additional to [NAME_4] other’ (i.e. Mrs B, who was still alive and had not been divorced).”

45. That observation is equally applicable to [NAME_4] circumstances of [NAME_4] present case ([NAME_4] place of marriage being Pakistan rather than Bangladesh being immaterial for these purposes).

46. I also referred to [NAME_4] 1975 Regulations and ruled as follows ([NAME_4] references in bold in [NAME_4] extract from Social Security [NAME_35]’s decision CG/2611/2003 are as in [NAME_4] original):

“19. Thus regulation 2(1) provides that “a polygamous marriage shall … be treated as having [NAME_4] same consequences as a monogamous marriage for any day, but only for any day, throughout which [NAME_4] polygamous marriage is in fact monogamous”. However, this does not have [NAME_4] effect of converting a void marriage into a valid one simply by virtue of [NAME_4] parties being in practice monogamously married immediately prior to one party’s death. Instead, it means that a valid polygamous marriage can be treated as “a monogamous marriage for any day … throughout which [NAME_4] polygamous marriage is in fact monogamous”. As Mr [NAME_35] put it in unreported decision CG/2611/2003 at paragraph 6:

“A person seeking to claim widow's benefit under [NAME_4] Security Contributions and Benefits Act 1992 has to be either [NAME_4] surviving member of a monogamous marriage recognised as valid under United Kingdom law or [NAME_4] surviving member of a valid marriage under a law which permits polygamy but in fact [NAME_4] only spouse of [NAME_4] deceased at [NAME_4] date of his death: section 121(1)(b), and regulation 2 of [NAME_4] Security and Family Allowances (Polygamous Marriages) Regulations 1975 SI No 561.”

20. [NAME_4] key expression in this passage for present purposes is “a valid marriage”. If Mr S had been domiciled in Bangladesh in 1983 he would have had capacity to enter into a valid polygamous marriage. If [NAME_4] sequence of events had then continued as before, Mrs N would be able to claim bereavement benefit on his death as she would be, in [NAME_4] words of Mr [NAME_35], “[NAME_4] surviving member of a valid marriage under a law which permits polygamy but in fact [NAME_4] only spouse of [NAME_4] deceased at [NAME_4] date of his death”. If, however, Mr S had been domiciled in [NAME_4] in 1983, then he would not have had capacity to enter into a polygamous marriage abroad in [NAME_4] first place and, by [NAME_4] [NAME_13] [NAME_4] second marriage in Bangladesh was void from [NAME_4] outset and could not be rescued by regulation 2. In effect it never existed as a valid marriage for [NAME_4] purposes of social security law (see R(G) 3/59).”

[NAME_4] Appellant’s human rights challenge to [NAME_4] orthodoxy 47. By [NAME_4] ‘orthodoxy’ I refer to [NAME_4] (accepted and agreed) effect of section 11(d) of [NAME_4] 1973, namely that a polygamous marriage entered into abroad [NAME_14] be void

CG/164/2018 13 under [NAME_4] [NAME_13] if either party was domiciled here at [NAME_4] time of [NAME_4] marriage. At this stage it is helpful to summarise [NAME_4] bare bones of [NAME_4] parties’ respective submissions (and putting [NAME_4] issue of potential remedies to one side for [NAME_4] present).

Bereavement payment and [NAME_4] human rights challenge 48. [NAME_20] submitted that [NAME_4] Department’s decision to refuse [NAME_4] Appellant’s claim for bereavement payment fell within [NAME_4] ambit of Article 8 and [NAME_21] of [NAME_4], read with Article 14. She further argued that [NAME_4] Appellant, as [NAME_4] widow of a religious marriage, is analogous to [NAME_4] position of [NAME_4] widow of a legal marriage, rather than being comparable to a [NAME_15]. Furthermore, it was said, [NAME_4] difference in treatment was not objectively justified and/or proportionate in circumstances where [NAME_4] Appellant was [NAME_4] only surviving wife and [NAME_4] [NAME_79] does recognise polygamous marriages for certain purposes.

49. [NAME_39]’s principal submission in response was that [NAME_4] Appellant was seeking to rely on a false analogy. She contended that [NAME_4] characterisation of [NAME_4] Appellant’s marriage as a religious marriage was to miss [NAME_4] point – it was a marriage that was void from [NAME_4] outset because of section 11(d) of [NAME_4] 1973. There was an obvious and clear difference between (a) a marriage that was lawful under [NAME_4] [NAME_13] and (b) a marriage that was void under that same law. Furthermore, and in any event, [NAME_39] argued that [NAME_4] bright line distinction between lawful and void marriages was such that any differential treatment was both objectively justified and proportionate.

Widowed parent’s allowance and [NAME_4] human rights challenge 50. [NAME_20]’s submission in this regard was straightforward. Irrespective of whether [NAME_4] Appellant’s situation was seen to be analogous to that of a widow of a legal marriage or rather to that of a surviving [NAME_15], [NAME_4] Appellant’s case was on all fours with Re [NAME_22].

Accordingly, [NAME_4] Department’s denial of WPA was contrary to Article 14 of [NAME_4], read in conjunction with [NAME_21], and/or in breach of [NAME_4] Appellant’s right to respect for her family life, contrary to Article 8.

51. [NAME_39] acknowledged that as a matter of principle [NAME_4] logic of Re [NAME_22] applied in equal measure to [NAME_4] case of [NAME_4] Appellant, who was on any basis a surviving [NAME_15] with a child. It followed that [NAME_4] religious dimension to [NAME_4] appeal was immaterial and no issue as to discrimination arose. Instead, [NAME_4] dispute between [NAME_4] parties revolved around what remedy, if any, was appropriate in these circumstances.

52. I now turn to explore each of those challenges in more detail.

[NAME_4] question of entitlement to bereavement payment Introduction 53. [NAME_4] of State’s starting point was simple. Section 36 of [NAME_4] 1992 provides that only a surviving “spouse or civil partner” can qualify for a bereavement payment. There was no suggestion that [NAME_4] Appellant was a civil partner. Nor was she a “spouse”, [NAME_39] submitted, as her marriage was not recognised under [NAME_4] [NAME_13]; it was void ab initio (from [NAME_4] start) – see section 11(d) of [NAME_4] 1973. On that basis [NAME_4] Appellant was in [NAME_4] same position as a surviving unmarried partner, and Re [NAME_22] was authority for [NAME_4] proposition that [NAME_4] exclusion of surviving cohabitants from entitlement to [NAME_4] bereavement payment did not represent a breach of their Convention rights.

CG/164/2018 14 54. On one level Re [NAME_22] would certainly appear to provide no direct assistance for [NAME_4] Appellant’s claim to be entitled to bereavement payment. In [NAME_4] of Northern Ireland, Treacy J held that it was not unlawful under Article 14 of [NAME_4] to treat married and unmarried surviving partners differently, for [NAME_4] purpose of promoting marriage, where [NAME_4] benefit was directed towards [NAME_4] surviving partner. Treacy J held that [NAME_4] position of a widowed spouse and a [NAME_15] were not analogous, explaining [NAME_4] lack of comparability in [NAME_4] following terms:

“66. Through marriage (or civil partnership) a couple regulates their relationship with each other and with [NAME_4] state through their public contract. [NAME_4] couple puts [NAME_4] state ‘on notice’ of their relationship. A cohabiting couple make no such public contract. This in itself is usually sufficient to make [NAME_4] two relationships sufficiently different in a material particular to lawfully treat [NAME_4] relationships differently in certain circumstances. By [NAME_4] act of marriage [NAME_4] couple ‘opt in’ to this different treatment – [NAME_4] treatment arises not by virtue of [NAME_4] quality of [NAME_4] relationship or [NAME_4] length of [NAME_4] relationship, but because [NAME_4] couple have made [NAME_4] contract and made [NAME_4] state aware of their changed circumstances.”

55. Baroness Hale endorsed that analysis in [NAME_4] [NAME_23]:

“26. It is always necessary to look at [NAME_4] question of comparability in [NAME_4] context of [NAME_4] measure in question and its purpose, in order to ask whether there is such an obvious difference between [NAME_4] two persons that they are not in an analogous situation. [NAME_4] factors linking [NAME_4] claim to article 8 are also relevant to this question. It was for this reason that Treacy J was able to distinguish between [NAME_26]’s claim for [NAME_4] bereavement payment and her claim for widowed parent’s allowance. In [NAME_4] case of [NAME_4] former, he held that [NAME_4] lack of a public contract between [NAME_26] and [NAME_40] meant that her situation was not comparable with that of a widow and her claim must fail (paras 66, 67). That decision has not been appealed. In [NAME_4] case of [NAME_4] latter, he held that [NAME_4] relevant ‘facet of [NAME_4] relationship’ was not their public commitment but [NAME_4] co- raising of children. For that purpose marriage and cohabitation were analogous (para 68).

27. In my view, that analysis is correct…”.

56. I also recognise that in [NAME_4] judicial review case of [NAME_16] (see paragraph 5 above) Cockerill J granted permission in respect of [NAME_4] Upper Tribunal’s ruling only as it related to WPA. Permission was refused on [NAME_4] bereavement payment point, as it was “not arguable to [NAME_4] requisite standard. It gains no support from Re [NAME_22] and appears to be determined by other authority.”

57. So, [NAME_4] omens from Re [NAME_22] may perhaps not be promising so far as [NAME_4] Appellant is concerned. However, it is important to address [NAME_4] four questions posed in any Article 14 challenge sequentially, while at [NAME_4] same time recognising they are not to be “rigidly compartmentalised” (Baroness Hale at paragraph 15).

Do [NAME_4] circumstances ‘fall within [NAME_4] ambit’ of one or more of [NAME_4] rights? 58. This first question need not delay [NAME_4] analysis unduly.

59. [NAME_20] submits that [NAME_4] refusal to award a bereavement payment was contrary to Article 14 of [NAME_4], read together with [NAME_21] and/or Article 8.

60. [NAME_4] of State accepts that bereavement payment falls within [NAME_4] ambit of [NAME_21] for [NAME_4] purposes of [NAME_4] Appellant’s claim under Article 14 of [NAME_4].

CG/164/2018 15 However, [NAME_4] Respondent makes no admission as to whether it also falls within [NAME_4] ambit of ECHR Article 8.

61. I agree with [NAME_39] that in [NAME_4] event Article 8 adds nothing to [NAME_4] overall analysis. I also recognise that although [NAME_4] [NAME_23] held that WPA fell within [NAME_4] ambit of Article 8 (see Baroness Hale at paragraph 23), [NAME_4] question of bereavement benefit was not before [NAME_4]. It is sufficient for me to proceed on [NAME_4] basis that [NAME_4] circumstances of [NAME_4] claimed breach of Article 14 fall within [NAME_4] ambit of [NAME_21].

Is there a difference in treatment between two persons in an analogous situation? 62. [NAME_4] parties part company on [NAME_4] second question. In summary, [NAME_20] argues that [NAME_4] Appellant, as [NAME_4] surviving partner of a religious marriage, is not comparable to a ‘mere’ or ‘ordinary’ [NAME_15]; rather, she is in an analogous position to a surviving spouse. [NAME_39], on [NAME_4] other hand, submitted there is no true analogue here as [NAME_4] comparison is between [NAME_4] widow of a lawful marriage and, in contradistinction, [NAME_4] survivor of a marriage that is void because it is polygamous.

63. Extracting a clear principle from [NAME_4] jurisprudence (see e.g. Van der Mussele v Belgium (1983) 6 EHRR 163) to assist in identifying whether a claimant’s situation is relevantly similar to those of her comparators is not straightforward. On [NAME_4] domestic front, [NAME_39] referred me to Lord Nicholls’s short concurring judgment in R ([NAME_42]) v Secretary of [NAME_2] [2006] 1 AC 173 (at paragraph 3):

“[NAME_4] essential question for [NAME_4] court is whether [NAME_4] alleged discrimination, that is, [NAME_4] difference in treatment of which complaint is made, can withstand scrutiny. [NAME_4] answer to this question [NAME_14] be plain. There may be such an obvious, relevant difference between [NAME_4] claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where [NAME_4] position is not so clear, a different approach is called for. Then [NAME_4] court's scrutiny may best be directed at considering whether [NAME_4] differentiation has a legitimate aim and whether [NAME_4] means chosen to achieve [NAME_4] aim is appropriate and not disproportionate in its adverse impact.”

64. [NAME_42], of course, was a challenge to [NAME_4] UK Government’s policy of not up- rating [NAME_4] state retirement pension for pensioners living abroad (unless they happened to live in a country with which a reciprocal agreement was in place). [NAME_4] majority of [NAME_4] of Lords agreed with Lord Hoffmann that “[NAME_4] position of a non- resident is materially and relevantly different from that of a UK resident (at paragraph 25). Lord Hoffmann rejected [NAME_4] contention that because [NAME_43] (living in South Africa) had paid [NAME_4] same national insurance contributions in [NAME_4] UK she was in an analogous situation to that of a UK resident (paragraph 20). Rather, [NAME_4] “interlocking nature” of [NAME_4] social security and tax systems meant that it was “impossible to extract one element for special treatment” (paragraph 22). Commenting on [NAME_4] [NAME_44] court’s “analogous situation” test, Lord Hoffmann observed that “whether cases are sufficiently different is partly a matter of values and partly a question of rationality” (paragraph 15). As [NAME_46] put it, “this assessment calls for a process of judicial evaluation which must be sensitive to [NAME_4] factual context. Some analogies are close, others are more distant” (at paragraph 68). Moreover, “it is sometimes a matter of impression which does not profit from elaborate analysis” (paragraph 79). [NAME_4] approach taken by [NAME_4] of Lords was endorsed by [NAME_4] majority of [NAME_4] Chamber in [NAME_4] subsequent [NAME_44] challenge ([NAME_42] v United Kingdom, Application no.42184/05; (2010) 51 EHRR 13)

CG/164/2018 16

65. It is also instructive to consider [NAME_4] judgment of [NAME_4] of Human Rights in [NAME_49] v United Kingdom (Application no.45851/99; [2000] ECHR 784), an earlier challenge to [NAME_4] exclusion of surviving cohabitants from entitlement to widow’s benefits. [NAME_4] [NAME_44] court ruled as follows:

“[NAME_4] applicant in [NAME_4] present case seeks to compare herself to a widow, in other words a woman whose husband, as opposed to partner, has died. [NAME_4] recalls that [NAME_4] Commission of Human Rights held, in a case concerning unmarried cohabitees who sought to compare themselves with a married couple that

“these are not analogous situations. Though in some fields, [NAME_4] de facto relationship of cohabitees is now recognised, there still exist differences between married and unmarried couples, in particular, differences in legal status and legal effects. Marriage continues to be characterised by a corpus of rights and obligations which differentiate it markedly from [NAME_4] situation of a man and woman who cohabit” ([NAME_50] v. [NAME_4], Comm. Dec. 1.11.86, D.R. 49, p. 181).

[NAME_4] notes that that decision of [NAME_4] Commission dates from 1986, that is, over 14 years ago. [NAME_4] accepts that there may well now be an increased social acceptance of stable personal relationships outside [NAME_4] traditional notion of marriage. However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter it. [NAME_4] situation of [NAME_4] applicant is therefore not comparable to that of a widow.”

66. On [NAME_4] face of it that passage would seem to support [NAME_4] Respondent’s case on this aspect of [NAME_4] appeal. However, [NAME_39] did not take me to that passage, or indeed to that ruling, and understandably so given that [NAME_4] majority in Re [NAME_22] did not regard [NAME_49] as determinative, [NAME_4] case being either distinguished (see Baroness Hale at paragraph 28) or explicitly not followed (see Lord Mance at paragraph 49). I recognise that [NAME_49] was followed relatively recently by [NAME_4] Chamber in [NAME_51] and [NAME_51] v United Kingdom (Application no.13378/05); (2008) 47 EHRR 38, but that was an unusual case in which two unmarried sisters who lived together were held not to be in an analogous position to spouses or civil partners.7

67. So, is [NAME_4] Appellant in an analogous position to a ‘lawful’ widow? [NAME_39]’s submission is that [NAME_4] Appellant is not, for [NAME_4] simple reason that she is [NAME_4] survivor of a void marriage and not [NAME_4] widow of a lawful marriage. I do not consider that such a binary approach is consistent with principle, given [NAME_45]’s observation in [NAME_42] that “some analogies are close, others are more distant”. In my view there is a spectrum of potentially analogous situations. At one end of [NAME_4] spectrum is [NAME_4] surviving spouse of a lawful marriage. At [NAME_4] other end of [NAME_4] spectrum there is, for example, [NAME_4] surviving partner of a short-term cohabiting relationship where [NAME_4] parties had made a conscious and deliberate decision not to get married or enter into a civil partnership. In between, there is a positive kaleidoscope of other types of quasi-matrimonial relationships. These might include, again by way of examples, [NAME_4]

7 And I note [NAME_51] is described as “a highly unsatisfactory decision” (p.1691) in [NAME_4] of Human Rights (OUP, 2nd edition, p.1691) by R. Clayton QC and H. Tomlinson QC, where [NAME_4] authors observe that [NAME_4] Chamber had been prepared to assume that [NAME_4] applicants’ position was analogous to that of a married couple – see (2007) 44 EHRR 51 at paragraph 58.

CG/164/2018 17 surviving partner of (i) a voidable marriage (ii) a void marriage; (iii) a non-marriage (see e.g. Hudson v Leigh [2009] EWHC 1306 (Fam), permission to appeal refused at [2009] EWCA Civ 1442); (iv) a long-term cohabiting relationship. [NAME_4] question then is where one draws [NAME_4] line on that spectrum, and whether there is enough of a relevant difference between [NAME_4] surviving spouse and [NAME_4] Appellant to justify different treatment.

68. I do not consider it is a good enough answer to say [NAME_4] Appellant had never been married in [NAME_4] eyes of [NAME_4] [NAME_13]. [NAME_4] couple’s marriage was valid under [NAME_4] law of Pakistan and valid more generally under Islamic law. As such, [NAME_4] parties regarded themselves as bound by [NAME_4] “corpus of rights and obligations which differentiate it markedly from [NAME_4] situation of a man and woman who cohabit” (to adopt [NAME_4] language of [NAME_50] v United Kingdom, as cited in [NAME_49]). Indeed, even today, had [NAME_4] parties been domiciled in Pakistan at [NAME_4] time of their marriage, there would have been no dispute over its validity. In that context it is relevant that [NAME_4] test of domicile can be notoriously difficult to apply in practice (see e.g. [NAME_35] QC’s observations in CG/2611/2003 at paragraph 10), such that an individual may well not know for sure at [NAME_4] time of such an overseas marriage whether it [NAME_14] subsequently be treated as valid in [NAME_5].

69. As [NAME_4] case law demonstrates, there is also an impressionistic element to this assessment. My overall conclusion, bearing in mind all [NAME_4] factors discussed above, is that [NAME_4] Appellant, as [NAME_4] sole surviving widow of an overseas religious marriage, is in an analogous position to that of a ‘lawful’ widow under a marriage recognised by [NAME_4] [NAME_13].

Is that differential treatment based on one of [NAME_4] characteristics listed or ‘other status’? 70. Having established that [NAME_4] Appellant is in an analogous situation to that of a ‘lawful’ widow, [NAME_4] third stage is to ask whether [NAME_4] difference of treatment is based on one of [NAME_4] characteristics listed in Article 14 (see paragraph 17 above) or “other status”. This point, as with [NAME_4] first, can be taken relatively shortly. [NAME_39]’s submission – which I do not accept for [NAME_4] reasons outlined above – is that [NAME_4] Appellant is not in an analogous position to [NAME_4] widow of a valid marriage. However, she also accepted that (if [NAME_4] matter proceeded that far) [NAME_4] Appellant had an “other status” for [NAME_4] purposes of Article 14. That concession was rightly made, given [NAME_4] Chamber of [NAME_4] [NAME_44]’s decision in [NAME_52] v Turkey (Application no.3976/05; (2011) 53 EHRR 25.

71. [NAME_4] applicant in [NAME_52] married Mr K in Turkey in a religious ceremony in 1976 and had six children with him. [NAME_4], reflecting [NAME_4] principle of secularism at [NAME_4] heart of [NAME_4], provides that [NAME_4] only recognised type of marriage is one before [NAME_4] civil status registrar. However, no official civil ceremony ever took place. Mr K died in 2002 and [NAME_4] applicant’s claim for a survivor’s pension was rejected by [NAME_4] [NAME_53]. [NAME_4] applicant challenged that refusal, arguing that it was contrary to Article 14 of [NAME_4], being based as it was on “her status as a woman married in accordance with religious rites” (paragraph 57). [NAME_4] accepted that [NAME_4] differential treatment “with regard to [NAME_4] benefits in question was based solely on [NAME_4] non-civil nature of her marriage to her partner” (paragraph 80). Moreover, [NAME_4] considered that “[NAME_4] absence of a marriage tie between two parents is one of [NAME_4] aspects of personal status which may be a source of discrimination prohibited by art.14” (paragraph 79). As Baroness Hale subsequently noted in Re [NAME_22], [NAME_4] [NAME_44], having found that being party to a religious marriage was a status within Article 14, went on directly to consider [NAME_4] issue of justification, “implying that [NAME_4] situations were relevantly similar” (at

CG/164/2018 18 paragraph 29). I return to [NAME_52] in [NAME_4] context of justification further below. For present purposes it is sufficient to observe that [NAME_4] applicant in [NAME_52] was a party to what [NAME_54] would characterise as a ‘non-marriage’ – under [NAME_4] law of [NAME_4] place where it was celebrated it had no effect. Thus, [NAME_4] religious marriage that took place in Turkey was simply of no effect according to [NAME_4]. In contrast, [NAME_4] Appellant’s marriage in [NAME_4] present case was lawful and recognised where it was entered into (and doubtless in other jurisdictions where Islamic law forms [NAME_4] basis of matrimonial law), reinforcing [NAME_4] point made above that her situation was analogous to that of a ‘lawful’ widow.

Is there an objective justification for that difference in treatment? 72. [NAME_39]’s submission was that even if I were to find against her on [NAME_4] discrimination question, i.e. whether [NAME_4] Appellant was in an analogous situation to a ‘lawful’ widow ([NAME_4] ‘ambit’ and ‘status’ issues being conceded), [NAME_4] Respondent had nevertheless shown there was an objective justification for [NAME_4] differential treatment. She reminded me of [NAME_4] well-established overarching principle that courts and tribunals [NAME_14] respect [NAME_4] of State’s judgement on matters of social policy in [NAME_4] welfare benefits context unless that judgement can be demonstrated to be “manifestly without reasonable foundation” (see e.g. Humphreys v HMRC [2012] UKSC 18; [2012] 1 WLR 1545 at paragraphs 19-20 per Baroness Hale). She also relied on [NAME_4] witness statement put in evidence by [NAME_55], [NAME_4] official with responsibility for bereavement benefits policy. Putting together [NAME_39]’s submissions and [NAME_58]’s evidence, [NAME_4] of State’s justification arguments may be summarised as follows.

73. [NAME_4] first is what might be termed [NAME_4] primacy of legal marriage justification. It was legitimate for [NAME_4] State to promote and prioritise legal marriage, a public contract recognised by law and complying with [NAME_4] requirements of that law, as shown by Treacy J’s finding in Re [NAME_22] (approved obiter in [NAME_4] [NAME_23]) that it was permissible to differentiate between marriage and cohabitation for [NAME_4] purposes of entitlement to a bereavement payment.

74. [NAME_4] second, [NAME_4] polygamy public policy justification, is to an extent [NAME_4] converse of [NAME_4] first justification. As [NAME_39] put it, domestic law has set its face against [NAME_4] acceptability of polygamy for reasons of public policy. Section 11(d) of [NAME_4] 1973 provides a clear rule – if you are domiciled in [NAME_5], you cannot enter into a polygamous marriage abroad.

75. [NAME_4] third justification is a related argument, that hardy perennial from [NAME_4] of State when facing challenges to benefits rules, [NAME_4] bright line justification. [NAME_39] submitted that section 11(d) of [NAME_4] 1973 provided a clear bright line rule – polygamous marriages are recognised in [NAME_5] only if neither party is domiciled here, [NAME_4] marriage is entered into overseas and [NAME_4] parties subsequently settle in [NAME_4] UK. [NAME_4] adoption of a bright line rule is a legitimate way of achieving a workable rule and legal certainty. [NAME_4] fact that there may be hard cases which fall [NAME_4] ‘wrong side’ of a bright line rule does not invalidate [NAME_4] rule if on [NAME_4] whole it is beneficial (see [NAME_59] v Secretary of [NAME_2] [2015] UKSC 47; [2015] 1 WLR 3250 per Lord Wilson at paragraph 27 and per Lord Mance at paragraph 51).

76. [NAME_4] fourth is [NAME_4] contributory principle justification. A ‘lawful’ widow’s ability to rely on [NAME_4] contributions record of her late husband was a founding principle of [NAME_4] social security system and especially [NAME_4] scheme of national insurance benefits (including, but not confined to, bereavement benefits).

CG/164/2018 19 77. [NAME_4] fifth is [NAME_4] administrative workability justification. Claimants necessarily apply for bereavement benefits at a difficult time and [NAME_4] system needs to be straightforward and non-intrusive to administer so as to minimise distress. Extending entitlement to bereavement payment and WPA to survivors of religious marriages that are not recognised under [NAME_4] [NAME_13] would be administratively difficult and costly.

78. Finally, there is [NAME_4] [NAME_52] v Turkey justification: [NAME_39] submitted that [NAME_4] of State’s submissions garnered support from [NAME_4] [NAME_44]’s decision in [NAME_52] v Turkey. [NAME_4] had found that [NAME_4] applicant was in an analogous situation and had [NAME_4] requisite status to complain under Article 14, it held that a difference in treatment in terms of entitlement to survivor’s benefits as between those married under [NAME_4] civil law and those who were only religiously married was justified. States enjoyed a wide margin of appreciation and [NAME_4] relevant measure was held to be proportionate to [NAME_4] aims of protecting public order and [NAME_4] rights and freedoms of others. [NAME_4] rules governing [NAME_4] recognition of marriage under [NAME_4] were clear, accessible and straightforward and did not place an excessive [NAME_51] on [NAME_4] applicant.

79. I [NAME_14] address each of these potential justificatory grounds in turn.

80. In my assessment [NAME_4] of State’s first justification, [NAME_4] primacy of legal marriage justification, whilst at first sight apparently compelling, on closer inspection is less so. Typically, this justification is primarily framed in public policy terms of [NAME_4] State favouring marriage over cohabitation, rather than [NAME_4] State favouring marriage as understood under [NAME_4] Act 1949 and [NAME_4] 1973 as against marriage which is valid in a jurisdiction abroad but not recognised in [NAME_4] UK. Even then, while accepting that [NAME_4] distinction (at least as between marriage and ‘ordinary’ cohabitation) was regarded as permissible in [NAME_4] context of [NAME_4] bereavement payment, [NAME_4] courts have found this justification as wanting in [NAME_4] context of WPA. Furthermore, unlike ‘ordinary’ cohabitants, [NAME_4] Appellant and her late husband did enter into a “public contract” of mutual commitment – it is just that contract, while recognised in Pakistan and within their community, was not recognised by English law because of section 11(d). In [NAME_4] final resort, reliance on [NAME_4] primacy of legal marriage as recognised by [NAME_4] [NAME_13] is to invoke [NAME_4] qualifying criterion in dispute for entitlement to [NAME_4] bereavement payment as [NAME_4] justification for itself.

81. [NAME_4] of State’s first justification shades into [NAME_4] second, namely [NAME_4] polygamy public policy justification. There are, it is said, strong public policy reasons why [NAME_4] state regards polygamy as unacceptable. [NAME_39] did not frame [NAME_4] objection in these terms, there are obvious objections to polygamy based on sexual equality.8 However, as [NAME_20] points out, [NAME_4] supposed public policy principle is not absolute as our law recognises polygamous marriages in some circumstances and for some purposes. Furthermore, I suspect that most passengers on [NAME_4] upper deck of a [NAME_60], whether or not they are of Bangladeshi or Pakistani heritage, would regard [NAME_4] Appellant as a ‘lawful’ (rather than a polygamous) widow. They would, I suggest, take account of [NAME_4] fact that Mr A had never lived with both wives at [NAME_4] same time, had divorced his first wife both by Islamic law and English law, and [NAME_4] Appellant was his sole surviving widow. I

8 Islamic law, according to some schools of thought at least, permits a man to have up to four wives, whereas a woman can only ever have one husband. In practice [NAME_4] incidence of ‘true’ polygamy is minimal.

CG/164/2018 20 consider they would be rather taken aback to be advised that on a true understanding of [NAME_4] complexities of English matrimonial law [NAME_4] Appellant’s marriage was void and of no effect in this country. Plainly this case is not a case of multiple wives, [NAME_4] scenario which understandably fully engages [NAME_4] public policy arguments against polygamy (see e.g. [NAME_61] v [NAME_62] and R(P) 2/06).

82. [NAME_4] third justificatory argument is [NAME_4] bright line justification. [NAME_39] submitted that section 11(d) represented a bright line rule in terms of public policy on welfare benefits. But there are bright lines and not so bright lines in [NAME_4] social security system. In my view section 11(d) draws a distinctly dim line. It is inherent in [NAME_4] notion of a bright line rule that [NAME_4] provision in question is clear and simple to apply in any given factual situation. Thus, in [NAME_59], [NAME_4] bright line rule – that [NAME_4] of State was in [NAME_4] event unsuccessful in seeking to justify – was [NAME_4] regulation which suspended payments of disability living allowance (DLA) to disabled children who had been inpatients in a [NAME_63] hospital for more than 84 days. Such a statutory provision involved a sequence of stark bright lines: [NAME_4] claimant was either a child or he was not; he was either in receipt of DLA or not; he was either an NHS inpatient or not; and he had been in hospital for more than 84 days or not. Each of those was a readily discernible straightforward question of fact. Section 11(d), however, turns on [NAME_4] issue of domicile, which can be notoriously difficult to assess and is a mixed question of fact and law (see paragraph 68 above). [NAME_4] Respondent’s argument that to treat [NAME_4] Appellant in [NAME_4] same way as a ‘lawful’ widow generates legal uncertainty is unconvincing, given that section 11(d) itself fails in practice to provide legal certainty. Indeed, [NAME_4] complexity of [NAME_4] law in this type of case is brought into sharp relief by [NAME_4] fact that [NAME_4] Department originally awarded [NAME_4] Appellant bereavement benefits before reversing its decision and issuing a disallowance. [NAME_4] brighter [NAME_4] bright line, [NAME_4] easier it may be for [NAME_4] of State to rely on it as justification. This so-called bright line is so hazy that it does not carry much weight in [NAME_4] overall assessment of justification.

83. Fourthly, I am not persuaded by [NAME_4] contributory principle justification. [NAME_4] 1948 national insurance reforms were certainly built on individuals’ contribution records, which could only be relied upon to found entitlement to benefit by [NAME_4] insured person himself or his widow. But [NAME_4] scheme was a creature of its time. What was fit for British society in 1948 – when married women’s employment was typically [NAME_4] exception rather than [NAME_4] rule and immigration from [NAME_4] was minimal – is not necessarily fit for a more open and multi- cultural society seven decades later in 2016. In terms of both [NAME_4] wider principles and [NAME_4] sheer numbers involved, there have been significant expansions in [NAME_4] right to rely on a deceased partner’s national insurance record in [NAME_4] contributory benefits system, driven by human rights considerations, i.e. to widowers and more recently to surviving civil partners. By comparison [NAME_4] extension of coverage to someone in [NAME_4] Appellant’s position is marginal.

84. Fifthly, nor do I place much reliance on [NAME_4] administrative workability justification. As [NAME_20] noted, [NAME_4] Department already has a specialist Relationship Validity Unit (RVU) to which its decision-makers can refer cases for advice on [NAME_4] validity of marriages for social security purposes. Indeed, RVU advice was sought in [NAME_4] present appeal. [NAME_58] reports that there were only 22 appeals in relation to spousal status in 2018, citing this statistic in support of [NAME_4] Department’s existing understanding of “spouse”. There is [NAME_4] hint of an undeveloped ‘floodgates’ argument here. However, as someone who has sat in this jurisdiction, including at first instance, for over 25 years, I have only ever seen a steady trickle of appeals where such advice has been sought, typically involving potentially (or

CG/164/2018 21 actually) polygamous marriages entered into abroad. If [NAME_4] present Appellant’s case were to be allowed, it is by no means clear that there would be anything more than a marginal increase in such difficult cases (indeed, as any claim such as [NAME_4] Appellant’s would succeed, there might even be fewer such appeals). As [NAME_20] argued, [NAME_4] administrative workability justification has a much greater potential purchase in [NAME_4] context of ‘ordinary’ living together cohabitants, where there are no special features such as an unrecognised religious marriage, which may in part account for [NAME_4] of State’s failure so far to chart a way forward in bereavement benefits policy in [NAME_4] light of [NAME_4] [NAME_23]’s judgment in Re [NAME_22].

85. Lastly, I am not persuaded by [NAME_39]’s parallel with [NAME_4] [NAME_52] v Turkey justification. Inevitably each such case [NAME_14] turn on its own facts and [NAME_4] wider social context. It was plain in [NAME_52] that [NAME_4] principle of secularism which underpinned [NAME_4] modern Turkish state was a vital, if not overriding, consideration in [NAME_4]’s reasoning (see paragraphs 61 and 81-82). [NAME_4] principle of secularism in relation to matrimonial law in Turkey admitted of no exceptions. In contrast, [NAME_4] UK’s disapproval of polygamy on public policy grounds lacks that absolutist nature. [NAME_4] 1975 Regulations recognise some polygamous marriages for social security purposes and recognition has also been indirectly accorded by case law (as e.g. in [NAME_4] context of [NAME_4] liable relative rules, on which see Iman Din v National Assistance Board [1967] 2 Q.B. 213, discussed below). Nor do I consider that [NAME_4] rule enshrined in section 11(d) of [NAME_4] 1973 can be regarded as clear, accessible and straightforward in [NAME_4] way that [NAME_4] was found to be. [NAME_4] applicant in [NAME_52] knew what needed to be done to regularise her matrimonial status but no such steps were taken (see paragraphs 83-87). In [NAME_4] present case [NAME_4] Appellant had no such knowledge or forewarning.

86. In any justification case there must be a reasonable relationship of proportionality between [NAME_4] aim and [NAME_4] means pursued. [NAME_4] distinction that [NAME_4] law makes between a ‘lawful’ widow and someone in [NAME_4] Appellant’s shoes is justified to [NAME_4] extent that it prevents more than one spouse claiming National Insurance benefits on [NAME_4] basis of [NAME_4] contributions paid by one and [NAME_4] same husband (see [NAME_61] v [NAME_62] and R(P) 2/06). However, for [NAME_4] reasons set out above I do not consider that [NAME_4] distinction between [NAME_4] Appellant and a ‘lawful’ widow can be justified or is proportionate in circumstances where [NAME_4] Appellant is [NAME_4] only surviving spouse of Mr A and in circumstances where [NAME_4] [NAME_13] already recognises [NAME_4] validity of some polygamous marriages based on a criterion (domicile) which lacks a clear bright line and may only be established (or indeed disproved) after [NAME_4] event.

[NAME_4] question of entitlement to widowed parent’s allowance 87. I can take this aspect of [NAME_4] appeal relatively shortly. [NAME_20] had both a primary submission and a secondary submission on [NAME_4] question of [NAME_4] Appellant’s entitlement to WPA. [NAME_4] former submission was that [NAME_4] Appellant’s position was analogous to that of a widow of a legal marriage, essentially for [NAME_4] same reasons as advanced in [NAME_4] context of access to [NAME_4] bereavement payment (see above). On that basis, it was argued, [NAME_4] Appellant was discriminated against because of [NAME_4] solely religious status of her marriage in circumstances where there was no objective justification for [NAME_4] differential treatment. [NAME_4] secondary submission was that, in any event, [NAME_4] Appellant’s position was on all fours with [NAME_4] claimant in Re [NAME_22], and [NAME_4] [NAME_23] had in effect confirmed that [NAME_4] exclusion of surviving

CG/164/2018 22 cohabitants from access to WPA involved unlawful discrimination.9 As Baroness Hale explained, having referred to [NAME_4] reasoning of Treacy J in [NAME_4] Ireland High Court:

“27. In my view, that analysis is correct. Widowed parents’ allowance is only paid because [NAME_4] survivor is responsible for [NAME_4] care of children who were at [NAME_4] date of death [NAME_4] responsibility of one or both of them. Its purpose must be to benefit [NAME_4] children. [NAME_4] situation of [NAME_4] children is thus an essential part of [NAME_4] comparison. And that situation is [NAME_4] same whether or not [NAME_4] couple were married to one another. It makes no difference to [NAME_4] children. But had [NAME_4] couple been married, their treatment would be very different: their household would have significantly more to live on while their carer is in work.”

88. [NAME_39] vigorously opposed [NAME_4] first of [NAME_20]’s submissions (for [NAME_4] reasons also considered above) but quite rightly and inevitably accepted [NAME_4] second submission. Thus, [NAME_39] conceded that [NAME_4] logic of Re [NAME_22] applied to [NAME_4] Appellant, as she was a surviving [NAME_15] with [NAME_4] care of her child with her late husband (or, as [NAME_39] would put it more strictly, with Mr A). On [NAME_4] basis of that concession, no question of discrimination on [NAME_4] ground of a ‘religious marriage’ (in contradistinction to a lawful marriage) arose. Although not germane to [NAME_4] present appeal, [NAME_39] put down a marker to [NAME_4] effect that [NAME_4] of State did not accept that all religious marriages fell within [NAME_4] scope of [NAME_4] Re [NAME_22] principle. This appears to be a live issue in [NAME_4] case of [NAME_16], which as noted (paragraph 5 above) is currently before [NAME_4].

89. On [NAME_4] facts of [NAME_4] present case, I did not understand [NAME_20] to be arguing that her first submission put [NAME_4] Appellant in any better position as regards entitlement to WPA than her second submission. [NAME_4] parallel with Re [NAME_22] as a surviving [NAME_15] was sufficient to get [NAME_4] Appellant home on entitlement. It followed that [NAME_4] real area of dispute in this aspect of [NAME_4] appeal was on what remedy was both available and appropriate.

Pausing there 90. In summary, therefore, I accept [NAME_20]’s submission that [NAME_4] State’s refusal to provide [NAME_4] Appellant with a bereavement payment is contrary to Article 14 of [NAME_4] read in conjunction with [NAME_21]. [NAME_4] bereavement payment is within [NAME_4] ambit of Article 14, [NAME_4] Appellant is in an analogous situation to a ‘lawful’ widow with [NAME_4] necessary status and [NAME_4] difference in treatment is not objectively justified or proportionate. [NAME_4] same is true as regard [NAME_4] refusal of WPA, but in any event [NAME_4] Appellant is [NAME_4] victim of unlawful discrimination on [NAME_4] same basis as [NAME_4] applicant in Re [NAME_22].

[NAME_4] question of remedy and bereavement payment Introduction 91. In terms of [NAME_4] Appellant’s claim for bereavement payment and [NAME_4] question of remedy, [NAME_20] makes two principal submissions in [NAME_4] alternative. [NAME_4] first, applying section 3 of [NAME_4] Act 1998, is to read section 36 of [NAME_4] [NAME_25] compatibly with [NAME_4], so as to require payment of bereavement payment to [NAME_4] sole surviving spouse of a religious marriage. [NAME_4] second, also applying section 3 of [NAME_4] Act 1998, is to read regulations 1 and 2 of

9 [NAME_4] fact that [NAME_26] had four children and [NAME_4] Appellant just [NAME_4] one is plainly not material.

CG/164/2018 23 [NAME_4] 1975 Regulations such as to treat [NAME_4] Appellant’s “polygamous marriage” as “in fact monogamous” for [NAME_4] purpose of section 36 of [NAME_4] [NAME_25].

Reading down section 36 of [NAME_4] Security Contributions and Benefits Act 1992 92. Section 3 of [NAME_4] Act 1998 provides as follows:

Interpretation of legislation.

3.─ (1) 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 [NAME_4] rights.

(2) This section—

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect [NAME_4] validity, continuing operation or enforcement of any incompatible primary legislation; and (c) does not affect [NAME_4] validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of [NAME_4] incompatibility.

93. As Lord Nicholls of Birkenhead observed in Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557:

32. … [NAME_4] mere fact [NAME_4] language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change [NAME_4] meaning of [NAME_4] enacted legislation, so as to make it Convention-compliant. In other words, [NAME_4] intention of Parliament in enacting section 3 was that, to an extent bounded only by what is 'possible', a court can modify [NAME_4] meaning, and hence [NAME_4] effect, of primary and secondary legislation.

33. Parliament, however, cannot have intended that in [NAME_4] discharge of this extended interpretative function [NAME_4] courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross [NAME_4] constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained [NAME_4] right to enact legislation in terms which are not Convention- compliant. [NAME_4] meaning imported by application of section 3 must be compatible with [NAME_4] underlying thrust of [NAME_4] legislation being construed. Words implied must, in [NAME_4] phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with [NAME_4] grain of [NAME_4] legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and [NAME_4] choice may involve issues calling for legislative deliberation.”

94. Even before grappling with [NAME_4] requirements of section 3, [NAME_20] contended that [NAME_4] pre-Human Rights Act case law justified an expansive interpretation of [NAME_4] word “spouse” in section 36 of [NAME_4] [NAME_25]. She relied on Iman Din v National Assistance Board [1967] 2 QB 213 and Bibi v Chief Adjudication Officer [1998] 1 FLR 375.

95. In [NAME_64] v [NAME_67] [NAME_4] appellant, when domiciled in Pakistan, had married two wives. He later came to [NAME_4] UK with his second wife and their children but abandoned them. [NAME_4] [NAME_67] supported [NAME_4] appellant’s second family and brought liable relative proceedings against [NAME_4]

CG/164/2018 24 appellant. [NAME_4] appellant argued that [NAME_4] wife of a polygamous marriage was not a “wife” within [NAME_4] relevant statutory definition and so he was not liable for maintenance. [NAME_4] held that [NAME_4] Board was entitled to bring liable relative proceedings. According to [NAME_68] LJ, Hyde v Hyde (1866) LR 1 P&D 130 did not mean that polygamous marriages were not recognised for all purposes. It was simply authority for [NAME_4] proposition that parties to a polygamous marriage “cannot obtain matrimonial relief against each other in [NAME_4] courts of this country” (at 218G- 219A). [NAME_20] relied, in particular, on [NAME_4] following passage (at 218F):

“When a question arises of recognising a foreign marriage or of construing [NAME_4] word ‘wife’ in a statute, everything depends upon [NAME_4] purpose for which [NAME_4] marriage is to be recognised and upon [NAME_4] objects of [NAME_4] statute.”

96. However, [NAME_4] rhetorical question posed by [NAME_68] LJ in [NAME_4] same paragraph is instructive:

“I ask myself first of all: is there any good reason why [NAME_4] appellant's wife and children should not be recognised as his wife and children for [NAME_4] purpose of [NAME_4] National Assistance Act, 1948? I can find no such reason, and every reason in common sense and justice why they should be so recognised.”

97. [NAME_64] v [NAME_67] was, of course, a case about means- tested social security benefits and [NAME_4] State’s statutory power to recover [NAME_4] costs of supporting recipients of such benefits from those liable relatives (typically husbands and fathers) with [NAME_4] legal responsibility to maintain them. Given that special context, I do not consider that it advances [NAME_20]’s argument in this appeal about entitlement to a National Insurance benefit based on [NAME_4] contributions record of [NAME_4] Appellant’s late husband.

98. In Bibi v Chief Adjudication Officer [1998] 1 FLR 375 [NAME_4] appellant was [NAME_4] first wife of a man who, while domiciled in Bangladesh, had married two wives, both of whom survived him with their respective children – [NAME_4] first wife living in England and [NAME_4] second wife in Bangladesh. [NAME_4] appellant’s claim for widowed mother’s allowance was refused on [NAME_4] basis that she was [NAME_4] widow of a valid marriage which was actually polygamous and was not ‘saved’ by [NAME_4] 1975 Regulations.

Accordingly, a key issue in [NAME_4] case was [NAME_4] absence of any provision within [NAME_4] scheme of widow’s benefits for such allowances to be divided between two or more polygamous beneficiaries. [NAME_4] claimant’s appeal. Ward LJ referred as follows (at p.380) to [NAME_69] v [NAME_67] (emphasis added):

“However, [NAME_4] court in that case, being a Divisional Court with [NAME_4] judgment being given by [NAME_68] LJ, did comment obiter on [NAME_4] social security Acts with which we are concerned. [NAME_4] court drew attention to decisions of commissioners under these Acts, for example, [NAME_4] decision in R(G) 18/52 which [NAME_4] commissioners have held, and have held consistently, that [NAME_4] polygamous wife is not entitled to a widow’s benefit. [NAME_68] LJ said this at 221:

'[NAME_4] ground for those decisions was that as [NAME_4] man paid only one lot of contributions, calculated on [NAME_4] basis of one wife at a time, [NAME_4] applied only in cases of monogamous marriages. It would clearly be wrong for a man paying contributions on [NAME_4] basis indicated to reap benefits in respect of perhaps three or four current wives.'

[NAME_4] meaning must depend on [NAME_4] statute concerned. I am entirely persuaded by [NAME_4] reasoning of [NAME_68] LJ that upon its proper construction s 25 envisages that

CG/164/2018 25 if a woman who is widowed is entitled to [NAME_4] allowance, she is entitled to [NAME_4] full allowance and that it is not contemplated that [NAME_4] allowance [NAME_14] be divided between more than one widow.”

99. [NAME_4] reference to section 25 in that extract was to section 25 of [NAME_4] Security Act 1975, in effect [NAME_4] statutory predecessor to section 37 of [NAME_4] [NAME_25], as it provided for a “woman who has been widowed” to qualify for what was then widowed mother’s allowance (now replaced by WPA under section 39A). [NAME_20] relied on [NAME_4] sentence I have underlined, but in my view this takes her no further than [NAME_4] ordinary canons of statutory interpretation. More telling, and in support of [NAME_39]’s submissions, is Ward LJ’s observation (at p.379) that “Widowhood is therefore, in my judgment, dependent upon a marriage existing at [NAME_4] time of [NAME_4] husband’s death. [NAME_4] issue is whether or not that has to be a valid marriage recognised as a marriage in our law” (emphasis added). His answer was that it did.

100. I also note that [NAME_4] Respondent’s position on this question of statutory construction is supported by [NAME_4] more recent decision of [NAME_4] of Appeal (Criminal Division) in R v Bala [2016] EWCA Crim 560; [2017] QB 430.10 [NAME_4] defendants, who were charged with immigration offences, had contracted a polygamous marriage in Nigeria that was valid under local law. [NAME_4] trial judge ruled [NAME_4] marriage was void under English law (see section 11(d) of [NAME_4] 1973) as [NAME_4] husband had been domiciled here. [NAME_4] defence argued [NAME_4] couple could not be guilty of criminal conspiracy as they were “spouses” within [NAME_4] meaning of section 2(2)(a) of [NAME_4] Act 1977. [NAME_4] appeals, [NAME_4] of Appeal held that for [NAME_4] purposes of section 2(2)(a) [NAME_4] reference to a “spouse” was to be taken “as a reference to a husband or wife (or, of course, civil partner) under a marriage, or civil partnership, recognised under English law” (at paragraph 55).

101. Summing up, [NAME_4] traditional maxims of statutory interpretation do not assist [NAME_4] Appellant. [NAME_4] clear preponderance of case law authority is to [NAME_4] effect that “spouse” in section 36 of [NAME_4] [NAME_25] means a spouse in a marriage recognised as such by English law. [NAME_20] acknowledged that [NAME_4] [NAME_23] in Re [NAME_22] had no option but to issue a declaration of incompatibility given that it was not possible to read down “spouse” to include “[NAME_15]”, as to do so would do violence to [NAME_4] statutory language. However, her submission was that to read “spouse” as including “[NAME_4] surviving spouse of a religious and formerly polygamous marriage” was permissible as it would not wreak such damage. [NAME_4] difficulty with this argument is that it divorces consideration of [NAME_4] wording of section 36 of [NAME_4] [NAME_25] from section 11(d) of [NAME_4] 1973, which is one of [NAME_4] ways in which [NAME_4] term “spouse” is defined by English law. In [NAME_4] absence of any other definition of “spouse” in [NAME_4] [NAME_25], one must fall back on [NAME_4] understanding supplied by matrimonial legislation.

Reading down regulations 1 and 2 of [NAME_4] 1975 Regulations 102. There is, however, an alternative approach. [NAME_20] invited me to read down [NAME_4] 1975 Regulations in such a way as to be Convention compliant. [NAME_4] relevant provisions are set out in paragraphs 32 and 33 above. [NAME_4] starting point is [NAME_4] definition of a “polygamous marriage” in regulation 1(2):

10 This case was not cited in argument but simply reinforces [NAME_4] orthodox understanding of section 11(d).

CG/164/2018 26 “polygamous marriage” means a marriage celebrated under a law which, as it applies to [NAME_4] particular ceremony and to [NAME_4] parties thereto, permits polygamy.

103. [NAME_4] “general rule”, as set out in regulation 2(1), is that for [NAME_4] purposes of [NAME_4] [NAME_25] such a polygamous marriage “shall … be treated as having [NAME_4] same consequences as a monogamous marriage for any day, but only for any day, throughout which [NAME_4] polygamous marriage is in fact monogamous.” We know from regulation 1(2) that ““in fact monogamous” is to be construed in accordance with regulation 2(2) below”, which provides that:

104. These interlocking definitions can arguably be read in either of two ways. [NAME_4] conventional or orthodox reading is that [NAME_4] definition of a “polygamous marriage” in regulation 1(2) is only referring to a polygamous marriage which is recognised as being valid by [NAME_4] [NAME_13]. It excludes a polygamous marriage which is void under our domestic law owing to section 11(d) of [NAME_4] 1973. So, it involves reading into [NAME_4] definition [NAME_4] words in italics:

““polygamous marriage” means a valid marriage recognised according to [NAME_4] [NAME_13] and celebrated under a law which, as it applies to [NAME_4] particular ceremony and to [NAME_4] parties thereto, permits polygamy;”.

105. There is, however, a second possible reading. [NAME_4] definition refers to a “polygamous marriage” as meaning “a marriage celebrated under a law (etc)…”; in [NAME_4] present case, [NAME_4] Appellant’s marriage to Mr A was indeed in its own terms a marriage celebrated “under a law which, as it applies to [NAME_4] particular ceremony and to [NAME_4] parties thereto, permits polygamy”. There has been no suggestion that there were any irregularities in [NAME_4] form of [NAME_4] marriage ceremony conducted in Pakistan. [NAME_4] law of that jurisdiction, as it applied to both (a) [NAME_4] particular ceremony and (b) [NAME_4] parties, plainly permits polygamy. On that basis [NAME_4] Appellant’s marriage to Mr A fell within [NAME_4] scope of [NAME_4] statutory definition of “polygamous marriage” in regulation 1(2) of [NAME_4] 1975 Regulations.

106. That then takes us to regulation 2(1) and [NAME_4] general rule. Such a polygamous marriage “shall … be treated as having [NAME_4] same consequences as a monogamous marriage for any day, but only for any day, throughout which [NAME_4] polygamous marriage is in fact monogamous.” This provision does not in terms require that [NAME_4] polygamous marriage only achieves parity with a monogamous marriage if it was actually monogamous throughout, i.e. from [NAME_4] date it was contracted to [NAME_4] date (if relevant) that it ended. Rather, it is to have [NAME_4] same consequences “for any day, but only for any day” that it was in fact monogamous. [NAME_4] Appellant’s marriage was necessarily monogamous at least from [NAME_4] date of Mr A’s English divorce from Ms B in 2009.

107. [NAME_4] expression “in fact monogamous” is then defined by regulation 2(2). [NAME_4] requirement in regulation 2(2)(a) is not limited in point of time to [NAME_4] precise date on which [NAME_4] marriage was contracted. From [NAME_4] relevant date of Ms B’s divorce in 2009

CG/164/2018 27 “neither party to it has any spouse additional to [NAME_4] other” and so was “in fact monogamous”. However, [NAME_4] further requirement in regulation 2(2)(b) might be read as requiring monogamy throughout [NAME_4] marriage, i.e. from [NAME_4] date of [NAME_4] marriage to [NAME_4] date of termination. There is, however, an alternative reading. [NAME_4] regulation refers to being “in fact monogamous”, which can be read in contradistinction to being “in law monogamous”. As previously noted, Mr A and Ms B separated in 2001. When Mr A married [NAME_4] Appellant in 2008, he was in [NAME_4] eyes of [NAME_4] [NAME_13] still married to Ms B so [NAME_4] relationship with [NAME_4] Appellant could not be “in law monogamous”. His marriage to [NAME_4] Appellant, however, was “in fact monogamous” as in fact he only ever lived with one spouse.

108. [NAME_39] seeks to resist a reading down of regulations 1 and 2 of [NAME_4] 1975 Regulations on [NAME_4] basis that it is inconsistent with [NAME_4] definition of “spouse” as understood in [NAME_4] terms of section 11(d) of [NAME_4] 1973. However, [NAME_4] meaning of “spouse” is not central to [NAME_4] interpretation and application of [NAME_4] 1975 Regulations. Rather, [NAME_4] focus of [NAME_4] exercise is [NAME_4] expression “polygamous marriage” and how that should be read in a Convention-compliant manner. I conclude, for [NAME_4] purposes of [NAME_4] Appellant’s entitlement to a bereavement payment, that [NAME_4] 1975 Regulations can be read down under section 3 of [NAME_4] Act 1998 so as to be Convention-compliant.

109. My decision is that [NAME_4] First-tier Tribunal erred in law in failing to read section 36 of [NAME_4] [NAME_25] in [NAME_4]-compliant way adumbrated above. I therefore allow [NAME_4] Appellant’s appeal and set aside [NAME_4] First-tier Tribunal’s decision. There are no further facts to be found, so I can give [NAME_4] decision that [NAME_4] first instance tribunal should have done. That decision is as follows:

[NAME_4] of State’s decision of 12 October 2016 is revised. [NAME_4] Appellant is entitled to a bereavement payment.

[NAME_4] question of remedy and widowed parent’s allowance 110. In terms of [NAME_4] Appellant’s claim for [NAME_4] question of remedy, [NAME_20] puts her case in two ways. First, her preferred option is that I allow [NAME_4] appeal, set aside [NAME_4]’s decision and re-make it reading regulations 1 and 2 of [NAME_4] 1975 Regulations compatibly with [NAME_4], so as to treat [NAME_4] Appellant’s “polygamous marriage” as “in fact monogamous” for [NAME_4] purpose of section 39A of [NAME_4] [NAME_25] in circumstances where she is [NAME_4] sole surviving wife of a religious, polygamous marriage. Second, and in [NAME_4] alternative, she accepts that I cannot make a declaration of incompatibility but invites me to make findings as to [NAME_4] discriminatory nature of [NAME_4] provisions on an obiter basis (following [NAME_4] approach and guidance of Upper Tribunal Judge Markus QC in PL v Secretary of [NAME_2] [2016] UKUT 177 (AAC)).

111. [NAME_39] resists both those proposed remedies. As to [NAME_4] former, [NAME_4] of State opposes a reading down of [NAME_4] 1975 Regulations for [NAME_4] same reasons as set out above in [NAME_4] context of bereavement payment – in short it is said [NAME_4] marriage is void and so [NAME_4] 1975 Regulations can provide no assistance. As to [NAME_4] latter, [NAME_39] contends it is inappropriate for [NAME_4] Upper Tribunal to make any further findings given that (a) it has no jurisdiction to make a declaration of incompatibility; (b) such a declaration has already been made in relation to [NAME_4] identical parallel Northern Ireland legislation; (c) any such findings would be non- appealable and so unfair (see [NAME_70] v Secretary of [NAME_2] [2015] CSIH 82) and (d) [NAME_4] of State has her response to [NAME_4] decision in Re [NAME_22] “under active consideration” ([NAME_39]’s skeleton argument at §38). [NAME_39] accordingly proposes that [NAME_4] appeal is dismissed.

CG/164/2018 28

112. For [NAME_4] same reasons as set out above in [NAME_4] context of [NAME_4] Appellant’s entitlement to a bereavement payment, I also conclude, for [NAME_4] purposes of [NAME_4] Appellant’s entitlement to WPA, that [NAME_4] 1975 Regulations can be read down under section 3 of [NAME_4] Act 1998 so as to be Convention-compliant. It follows my decision on this aspect of [NAME_4] appeal is as follows:

[NAME_4] of State’s decision of 12 October 2016 is revised. [NAME_4] Appellant is entitled to widowed parent’s allowance.

113. For completeness, not least if I am wrong about [NAME_4] previous point, I should also deal with counsels’ submissions on [NAME_4] issue of a declaration of incompatibility. Technically there has been no declaration of incompatibility in Great Britain in relation to [NAME_4] discriminatory nature of [NAME_4] provisions. [NAME_4] [NAME_23]’s declaration of incompatibility in Re [NAME_22], made under section 4(2) of [NAME_4] Act 1998, was made in respect of section 39A of [NAME_4] parallel Northern Ireland legislation, not [NAME_4] equivalent SSCA 1992 provision. Understandably, given [NAME_4] two section 39As are effectively in identical terms, everyone regards [NAME_4] declaration as having an equal impact on section 39A of [NAME_4] [NAME_25]. Be that as it may, [NAME_4] jurisdictional niceties are largely irrelevant as in any event [NAME_4] Upper Tribunal does not have [NAME_4] power to make a declaration of incompatibility (see [NAME_4] definition of “court” in section 4(5) of [NAME_4] 1998 Act).

114. [NAME_39] contends that [NAME_4] appropriate approach for [NAME_4] Upper Tribunal is to dismiss [NAME_4] appeal, not least as (leaving aside [NAME_4] problem of [NAME_4] parallel jurisdictions) [NAME_4] declaration of incompatibility in Re [NAME_22] “does not affect [NAME_4] validity, continuing operation or enforcement of [NAME_4] provision in respect of which it is given” (section 4(6)(a) of [NAME_4] 1998 Act). Her submission is that [NAME_4] proper approach is to allow [NAME_4] constitutional settlement of [NAME_4] Act to take effect and run its course.

115. In [NAME_4] event I am mistaken about reading down regulations 1 and 2 of [NAME_4] 1975 Regulations, I would still allow [NAME_4] appeal on [NAME_4] basis that [NAME_4] First-tier Tribunal failed to give adequate reasons for its conclusion on [NAME_4] human rights dimension to [NAME_4] appeal. In doing so I recognise [NAME_4] First-tier Tribunal has not had [NAME_4] benefit of [NAME_4] argument I have heard. I would also set aside [NAME_4] First-tier Tribunal’s decision as being in error of law. In that scenario, I do not accept that it would be proper for me to re-make [NAME_4] decision under appeal. I do not consider that it would be in keeping with [NAME_4] spirit of [NAME_4] Act to re-make [NAME_4] First-tier Tribunal’s decision to [NAME_4] same effect, namely to confirm [NAME_4] Department’s decision that [NAME_4] Appellant has no entitlement to WPA as [NAME_4] law currently stands. At [NAME_4] very least I can record that [NAME_4] Appellant, inasmuch as she is in [NAME_4] same position as [NAME_4] applicant in Re [NAME_22], is likewise [NAME_4] victim of unlawful discrimination as a surviving [NAME_15] with care of her child. In addition, I would remit [NAME_4] case to [NAME_4] of State for her to consider revising [NAME_4] original disallowance decision as and when she brings forward such amendments to section 36 of [NAME_4] [NAME_25] as are considered appropriate in [NAME_4] light of [NAME_4] [NAME_23]’s decision.

116. I readily accept [NAME_39]’s argument that it is not for [NAME_4] Upper Tribunal to second guess what [NAME_4] of State may or may not decide to do in response to [NAME_4] decision in Re [NAME_22]. However, I think it is appropriate to express judicial concern at [NAME_4] apparently glacial pace of [NAME_4] of State’s consideration of such matters. [NAME_4] [NAME_23]’s decision was promulgated on 30 August 2018. It is now 8 months later and all we have to show for this review is [NAME_39]’s assurance (repeating assurances to Parliament) that [NAME_4] matter is under

CG/164/2018 29 consideration, or even under active consideration. I recognise that [NAME_4] Department has had other pressing priorities over [NAME_4] past year, both internally (universal credit reform) and externally (Brexit), but there must be very many bereaved partners whose possible entitlement to WPA remains in limbo. I simply note that [NAME_4] of Commons Work and Pensions Select Committee has recently established a follow- up enquiry to what it has described (in [NAME_4] context of Re [NAME_22]) as [NAME_4] “profound injustice” of [NAME_4] bereavement benefits system (Press Release, 9 April 2019). [NAME_4] Rt Hon Frank Field MP, Chair of that Committee, has also written to Mr [NAME_14] MP, [NAME_4] new Parliamentary Under-Secretary with policy responsibility for this area, seeking an update on how [NAME_4] Government proposes to respond to [NAME_4] Re [NAME_22] judgment (letter dated 8 April 2019).

Conclusion 117. [NAME_4] Appellant’s appeal is allowed.

Signed on [NAME_4] original

[NAME_71] on 30 April 2019

Judge of [NAME_4] Upper Tribunal