Correctness before Comity: Cross‑Jurisdictional Precedent, Article 14 Status and the Contributory Principle in Jwanczuk v Secretary of State [2025] UKSC 42

1. Introduction

The Supreme Court’s decision in R (Jwanczuk) v Secretary of State for Work and Pensions [2025] UKSC 42 is a major judgment at the intersection of constitutional law, human rights and social security law. It does three important things:

• Constitutional precedent: It clarifies how senior courts in one UK jurisdiction (e.g. England & Wales) should treat decisions of courts of coordinate jurisdiction in another (e.g. Northern Ireland or Scotland) when interpreting UK‑wide or identically worded legislation. It confines the special Abbott v Philbin rule to tax law and rejects a generalized requirement to follow other jurisdictions’ decisions unless they are “clearly wrong”.
• Article 14 “status”: It confirms that being the surviving spouse of someone who, because of disability, was unable to work (and so to pay contributions) throughout their working life is a valid “other status” under Article 14 ECHR. This is an associative, disability‑related status.
• Justification and remedies: It nonetheless upholds the Bereavement Support Payment (BSP) contribution condition as justified, emphasising the contributory principle and bright‑line rules in welfare legislation, and it sharply limits the use of section 3 HRA to read in exceptions against that legislative grain.

The case therefore both strengthens the UK courts’ insistence on constitutional restraint in welfare policy and refines important aspects of discrimination analysis under Article 14.

2. Background: Facts and Issues

2.1 The parties and the claim

The respondent, Daniel Jwanczuk, married his childhood friend, Suzanne (“Suzzi”) Jwanczuk, who had Ullrich congenital muscular dystrophy, a progressive degenerative condition causing severe disability. Despite hopes of working in earlier life, she was never able to undertake paid employment. She received incapacity‑type benefits; he cared for her until her death in November 2020 at age 45.

After her death, Mr Jwanczuk applied for Bereavement Support Payment (BSP). BSP is a non‑means‑tested contributory benefit introduced by the Pensions Act 2014, payable to a surviving spouse/civil partner/cohabitant if, among other conditions, the deceased met a contribution condition: for at least one tax year during their working life, they must have “actually paid” Class 1 or 2 National Insurance contributions generating an earnings factor at or above 25 times the lower earnings limit (a modest threshold).

Because Suzzi had never worked and had never “actually paid” Class 1 or 2 contributions, his claim was refused. The refusal was upheld on reconsideration. The sum at stake was £4,300; but far more important were the legal principles.

2.2 The legal issues

Four issues reached the Supreme Court:

1. Constitutional / precedent issue (Ground 1):
   What weight should the courts of England & Wales give to the earlier decision of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36, which had held that the equivalent Northern Irish contribution condition unlawfully discriminated and had read in an exception for those unable to work throughout their working life due to disability?
   Specifically, was the Court of Appeal right to treat itself as bound to follow O’Donnell unless it was “clearly wrong” or there were “compelling” reasons to depart?
2. Article 14 “status” (Ground 2):
   Does being the surviving spouse of a person who was unable to work throughout their working life due to disability amount to an “other status” under Article 14 ECHR (read with A1P1)?
3. Justification (Ground 3):
   Assuming a relevant status and differential treatment, is the contribution condition objectively and reasonably justified under Article 14? What intensity of review applies, particularly given the disability element and the welfare‑benefit context?
4. Remedy under the HRA (Ground 4):
   If there were incompatibility, could the 2014 Act be read down under section 3 HRA to create an exception for those unable to work due to disability, or would the only proper remedy be a section 4 declaration of incompatibility?

Both the High Court (Kerr J) and the Court of Appeal had followed O’Donnell, held that the contribution condition unlawfully discriminated contrary to Article 14 + A1P1, and read in an exception using section 3 HRA. The Secretary of State appealed.

3. Summary of the Supreme Court’s Decision

The Supreme Court (Lord Reed PSC and Lady Simler JSC giving a joint judgment, with whom Lord Lloyd‑Jones, Lady Rose and Lord Richards agreed) allowed the Secretary of State’s appeal. Its core holdings can be summarised as follows:

• Ground 1 (cross‑jurisdictional precedent): The Court of Appeal erred in treating O’Donnell as binding in practice unless “clearly wrong” or unless “compelling reasons” justified departure. Outside the special context of tax legislation, decisions of appellate courts in other UK jurisdictions are persuasive, not binding (even as a rule of practice): appellate courts should follow them only if they find the reasoning convincing or practical considerations strongly support alignment. They may simply depart if they consider them wrong, without needing to invoke “exceptional” circumstances.
• Ground 2 (status): The respondent does have an “other status” under Article 14: he is the surviving spouse of a person who, due to severe disability, was unable to work (and thus to pay contributions) throughout her working life. This is an associative, disability‑related status and is objectively determinable.
• Ground 3 (justification): The contribution condition is compatible with Article 14. The aims of:
  • rewarding work and maintaining the contributory principle;
  • simplification and administrative practicality through a bright‑line contribution rule; and
  • providing certainty so people can understand their entitlements
  are legitimate, and a wide margin of judgment applies in welfare policy. Requiring “actual payment” of contributions, with only a limited industrial injury exception, is objectively and reasonably justified even for those whose non‑payment stems from lifelong disability.
• Ground 4 (remedy under section 3 HRA): Although academic in light of the conclusion on justification, the Court held that it is not “possible” within section 3 HRA to read in an exception for those unable to work throughout their lives. Such a carve‑out would go against the “grain” and “underlying thrust” of the legislation, especially given Parliament’s deliberate choice to maintain a strict “actual contributions” rule subject only to a narrow death‑at‑work exception.

Accordingly, the respondent is not entitled to BSP. The Court recognised that the outcome is harsh for Mr Jwanczuk, but emphasised that in welfare policy the separation of powers requires the courts to respect Parliament’s choices unless they breach Convention standards.

4. The Constitutional Precedent: Cross‑Jurisdictional Decisions Within the UK

4.1 The doctrine of precedent and distinct UK legal systems

The judgment begins with a careful restatement of the doctrine of precedent and the UK’s multi‑jurisdictional structure:

• England & Wales, Scotland and Northern Ireland each have distinct legal systems and court hierarchies.
• Each has its own internal rules of precedent (e.g. Young v Bristol Aeroplane for the English Court of Appeal; the more flexible self‑review powers of the Inner House in Scotland).
• Decisions of courts in one jurisdiction cannot bind courts in another as a matter of the common law of precedent. This was clearly articulated by Laws LJ in Marshalls Clay Products Ltd v Caulfield [2004] EWCA Civ 422.

Thus, the question is not about binding precedent in the strict sense, but rather about judicial practice grounded in comity and practical good sense.

4.2 The special tax rule and Abbott v Philbin

Historically, one area has been treated as exceptional: revenue (tax) law. In Abbott v Philbin [1960] Ch 27; [1961] AC 352, concerning the income tax treatment of share options, the English Court of Appeal chose to follow an earlier Scottish Court of Session decision on the same UK‑wide tax statute, despite having serious doubts about its correctness, in order to maintain uniformity of tax incidence across the UK. The House of Lords approved that approach.

The Supreme Court in Jwanczuk re‑emphasises:

• The Abbott v Philbin practice is confined to tax legislation, and even there it is a rule of practice justified by the constitutional and economic need for uniform tax outcomes across the UK (paras 73–77).
• It rests on “deep roots” in earlier authorities emphasising that an “universal law” of taxation cannot sensibly bear different interpretations in different parts of the same state.

4.3 The error of extending Abbott v Philbin to other areas

The Court then tracks how the tax‑based practice was improperly extended to other areas:

• Deane v Secretary of State for Work and Pensions [2010] EWCA Civ 699;
  Ward LJ suggested that where Northern Irish provisions are identical or materially the same as those in England & Wales, the Court of Appeal “ought to follow” the Northern Ireland Court of Appeal to avoid divergent interpretations, citing Abbott v Philbin. The Supreme Court in Jwanczuk holds this reasoning to be wrong: it misunderstood Abbott as a general rule rather than a tax‑specific practice, and mis‑characterised the question as one of binding precedent rather than persuasive weight and comity (paras 94–97).
• Tribunal practice and R (SB) 1/90:
  A Tribunal of Social Security Commissioners had suggested that Court of Appeal and Court of Session decisions on common provisions were effectively binding “of necessity” throughout Great Britain. Again, this is rejected in Jwanczuk as a misunderstanding of the constitutional position (paras 98–101).
• Augustine v Data Cars Ltd [2024] EAT 117; [2025] ICR 19 and CA appeal [2025] EWCA Civ 658:
  The EAT and later the Court of Appeal treated a Scottish Inner House decision on GB‑wide employment legislation as effectively binding unless “compelling reasons” justified departure, explicitly invoking Abbott. The Supreme Court disapproves of this reasoning in principle, though it discusses Augustine only as an illustration.

The crucial point is that these cases incorrectly converted a narrow tax‑based practice into a quasi‑doctrine of cross‑jurisdictional stare decisis for any identically worded statute, which the Supreme Court now firmly rejects.

4.4 The new articulation: persuasive, not binding, outside tax

The Supreme Court instead sets out a structured approach:

• Decisions of appellate courts in other UK jurisdictions are persuasive authority, to be treated with “great respect” (paras 60–61, 108).
• The weight given depends principally on:
  • how convincing the reasoning is; and
  • whether practical problems are likely if it is not followed (e.g. in some technical areas, or where legal certainty is crucial).
• Appellate courts may particularly be inclined to follow other jurisdictions on narrow, technical questions of statutory construction where it is genuinely hard to say one reading is right and another wrong, and certainty matters (paras 71–72).
• They may be less inclined to defer where the issue is a broad question of legal principle or rights (such as the content of Convention rights), particularly once they have had the benefit of later Supreme Court authority (as here with SC [2021] UKSC 26).
• Crucially, outside tax cases, there is no obligation to follow another jurisdiction’s decision absent “compelling reasons” or “exceptional circumstances”: courts “should not regard themselves as being under an obligation to follow decisions which they consider to be wrong. They do not require to identify some other compelling reason for departing from a wrong decision” (para 112).

The Supreme Court then applies this to the present case:

• The Court of Appeal wrongly treated O’Donnell as falling within the Abbott v Philbin rule. Social security legislation is not tax law; its economic and constitutional implications differ.
• The context had changed: SC (2021) had significantly clarified justification under Article 14, and the evidence/arguments before the English courts differed from those before the Northern Ireland Court of Appeal.
• Practical disruption from divergence was limited:
  • Northern Ireland had already been operating under O’Donnell for three years,
  • the Secretary of State had chosen not to align policy in England & Wales with the NI approach, and
  • any divergence would ultimately be resolved by the Supreme Court.

Accordingly, the Court of Appeal ought to have formed its own view on compatibility and, if it thought O’Donnell was wrong, simply said so and granted permission to appeal.

4.5 Practical implications of the new rule of practice

The precedent effect of this part of the judgment is substantial:

• For appellate courts (CA, NI CA, Inner House):
  • They must treat each other’s decisions on UK‑wide or identically worded statutes as highly persuasive, but not as binding in law or under any quasi‑binding “rule of practice” (save for tax).
  • They are free to depart if, after proper consideration, they genuinely consider the earlier decision wrong.
  • They should explain their disagreement openly and facilitate a timely appeal to the Supreme Court.
• For specialist tribunals spanning GB (e.g. EAT, some First‑tier/Upper Tribunal chambers):
  • They should continue to strive for consistency and ordinarily follow higher‑court authority from any GB jurisdiction on GB‑wide statutes, but as a matter of prudential practice, not jurisdictional obligation.
  • They must recognise that they are not legally bound by, for instance, the Court of Session when sitting in England, or vice versa, subject always to the Supreme Court’s overarching authority.
• For practitioners:
  • Arguments that another UK jurisdiction’s decision is binding as such are now untenable outside tax.
  • The focus should instead be on demonstrating why that decision’s reasoning is (or is not) compelling and whether divergence would cause real mischief.

In short, the decision re‑calibrates comity versus correctness: correctness of interpretation generally takes priority, with comity and practicalities shaping the weight given to sister‑jurisdiction decisions rather than creating a de facto binding rule.

5. Article 14 and “Other Status” in this Case

5.1 Article 14 framework and Thlimmenos discrimination

The Court works within the four‑stage Article 14 structure previously summarised by Lord Reed in SC:

1. Status: Is the difference in treatment based on an identifiable “status” (including “other status”)?
2. Comparison: Is there different treatment of persons in analogous or relevantly similar situations or a failure to treat differently persons whose situations are relevantly different (Thlimmenos)?
3. Within the ambit: Does the complaint fall within the ambit of a substantive Convention right (here, A1P1 via social security entitlements)?
4. Justification: Is the difference objectively and reasonably justified (legitimate aim; rational connection; proportionality/fair balance)?

This case concerns Thlimmenos‑type discrimination: the complaint is that the legislation fails to make an exception for surviving spouses whose partners could never work because of disability, treating them in the same way as those whose partners simply did not work by choice.

5.2 “Status” and suspect grounds: the broader jurisprudence

Article 14 lists a number of statuses (sex, race, etc.) and “other status” is construed broadly in Strasbourg and domestic case law. The Court notes:

• “Other status” is not limited to characteristics analogous to those expressly listed or to immutable qualities. It can be acquired or context‑specific (para 134).
• There must, however, be a characteristic that is more than a mere restatement of the differential treatment itself (per SC, para 69).
• Some statuses are “suspect” (e.g. sex, race, and often disability), triggering very weighty reasons and a typically narrower margin of appreciation (see Glor v Switzerland, Guberina v Croatia).
• Disability is recognised as such a suspect ground, because of historic prejudice and the risk of legislative stereotyping that denies individualised assessment.

5.3 The status in Jwanczuk: associative disability‑related status

The respondent’s proposed status is:

“Being the spouse of a deceased person who was severely disabled so that she was unable to work and therefore unable to pay Class 1 or Class 2 national insurance contributions throughout her working life.”

The Supreme Court accepts this as a valid “other status”:

• It is associative: the respondent relies not on his own disability but on his association (by marriage) with a person whose disability explains her lifelong inability to work. Associative discrimination is well established in EU and ECHR contexts (Coleman v Attridge Law C‑303/06).
• It is linked to disability, which itself is a protected and often suspect ground, even though disability is not the immediate legal criterion in the BSP condition.
• “Permanently unable to work due to disability” is a socially and economically significant characteristic, recognised in both public and private insurance schemes.
• Its determinability is supported by long‑standing benefit regimes requiring assessment of incapacity for work (sickness benefit, invalidity benefit, incapacity benefit, ESA, and the universal credit limited‑capability‑for‑work test).

The Court therefore treats the inability to work due to disability over one’s working life as an objectively determinable and meaningful status, and accepts that the surviving spouse is discriminated against “by association”.

5.4 Rejection of the Secretary of State’s objections

The Secretary of State had argued that the proposed status:

• is not genuinely a “personal characteristic” but merely a description of the effect of the rule;
• is too subjective and uncertain — in particular, it requires difficult judgments as to whether the deceased was in fact “unable” to work throughout a long period; and
• is not drawn from, or mandated by, Strasbourg case law.

The Court dismisses these points:

• Personal characteristic: The status is not merely a re‑labelling of the difference in treatment; it is tied to an underlying factual condition (lifelong inability to work due to disability) that has independent social and economic significance.
• Objectivity and evaluative judgments: Many accepted statuses — disability, cohabitation (McLaughlin), inability to share a bedroom due to disability (MA) — require evaluative assessments. The key is whether the assessment is a rational evaluation of objectively ascertainable facts, which is plainly possible here, using evidence such as benefit records, medical evidence, work history, etc.
• Changeability: The assessment is binary for BSP purposes: either the deceased could ever reasonably have worked to the extent of meeting the minimal contribution threshold, or they could not. That binary question can be determined at the date of application on pre‑existing evidence.
• Strasbourg consistency: The Court is satisfied this status would be recognised at Strasbourg and is consistent with existing ECHR jurisprudence; domestic courts are therefore entitled to recognise it (cf. R (AB) v Secretary of State for Justice [2021] UKSC 28 on the domestic court’s role in articulating new but Strasbourg‑compatible rights concepts).

On this basis, the Court affirms the lower courts’ conclusion on status: Ground 2 fails.

5.5 Significance of the status holding

Although the respondent ultimately loses on justification, this status ruling is itself important:

• It confirms that disability‑linked associative statuses are within Article 14, even where the formal criterion (here, “actual contributions paid”) is neutral on its face.
• It signals that complexity or administrative difficulty in identifying the group will more naturally go to justification, not to whether there is a status at all.
• It will assist future claimants raising Thlimmenos‑type complaints where neutral contribution or eligibility rules de facto disadvantage those associated with severely disabled persons.

6. Justification and Proportionality in Welfare Benefits

6.1 The Bank Mellat framework and SC (2021)

The Court applies the Bank Mellat four‑stage proportionality test (para 197):

1. Is the objective sufficiently important?
2. Is there a rational connection between the measure and the objective?
3. Could a less intrusive measure have been used without unacceptably compromising the objective?
4. Is there a proper balance between the adverse effects of the measure and the importance of the objective (fair balance)?

In SC v Secretary of State for Work and Pensions [2021] UKSC 26 (the “two‑child limit” case), Lord Reed analysed how this interacts with the Strasbourg notion of a margin of appreciation and the domestic concept of “manifestly without reasonable foundation” (MWRF) in socio‑economic fields.

Jwanczuk builds on that analysis:

• In welfare, pensions and social housing, a low intensity of review “is generally appropriate” because Parliament is making allocative and distributive choices (para 158).
• Where suspect grounds (such as disability) are directly in play, “very weighty reasons” are usually required, but other factors (e.g. complex social policy, transitional measures, evolving consensus) can moderate that intensity.
• Rather than obsess over whether a measure is “manifestly without reasonable foundation” in the abstract, domestic courts should ask whether, given all the circumstances, a wide margin of judgment is appropriate in the particular case (para 161).

6.2 The Secretary of State’s aims and the contributory principle

The Secretary of State advanced three interrelated aims for the BSP contribution condition:

1. Rewarding work and upholding the contributory principle:
   • BSP is deliberately a contributory, not a means‑tested, benefit: it is part of the “insurance” aspect of the welfare state.
   • The policy aim is that “work should pay”; people who work and pay contributions derive an entitlement, reducing stigma and reinforcing a sense of “earned right” to benefits.
   • National Insurance credits and voluntary Class 3 contributions are deliberately excluded from BSP entitlement: the scheme focuses on actual paid Class 1 or 2 contributions (section 31(1) 2014 Act).
2. Simplicity, administrative workability and bright‑line rules:
   • A single, minimal contribution year is easy to check from HMRC records and cheap to administer; entitlement can be determined quickly for bereaved claimants.
   ever able to work would be complex, time‑consuming, and evidence‑heavy, especially where records go back decades or include periods overseas.
3. Certainty and ability to plan:
   • Clear contribution rules enable individuals to understand their potential entitlements and make informed financial decisions during working life.

The Supreme Court accepts all three aims as legitimate and rationally connected to the contribution condition.

6.3 Why the Court found the contribution condition justified

Applying a wide margin of judgment appropriate to the welfare context, the Court concludes that the refusal to carve out an exception for those unable to work throughout their lives is objectively and reasonably justified. Key elements of the Court’s reasoning include:

• Wide margin in social and economic policy:
  • BSP entitlement is a matter of primary legislation in the socio‑economic sphere, following public consultation in which the exclusion of those unable to work due to illness or disability was expressly recognised but consciously maintained.
  • The Court emphasises there is no universal consensus, domestically or across the Council of Europe, that such bereavement benefits must cover surviving spouses of lifelong‑disabled non‑contributors.
• Connection to disability is indirect and relatively weak:
  • The BSP rule does not target disabled persons or inhibit their labour‑market participation.
  • Many disabled people can and do meet the (very modest) contribution threshold: a single year of contributions at about £3,000 earnings (approx. two months’ full‑time minimum‑wage work at any point since age 16).
  • Disability is a factor only where it explains why no contributions were ever paid, but the rule applies equally to non‑disabled non‑contributors.
  • This is not a case where stereotypes about disabled people’s relationships or family life are embedded in the legislation.
• Legitimate preference for bright‑line rules despite hard cases:
  • In welfare law, broad categories and bright‑line rules are often necessary to keep the system workable and predictable. The Court cites Animal Defenders, Mathieson, R (A) v CICA and SC on the acceptability of such rules even if some hard cases arise at the margins.
  • A bespoke exception for “lifelong inability to work due to disability” would require individualised, retrospective assessment of work capacity over decades, with no single reliable proxy or data source. That would be administratively burdensome and prone to inconsistency and arbitrariness.
  • The contrast with Northern Ireland’s adoption of an exceptions policy after O’Donnell does not make the GB scheme unlawful: Parliament is entitled to legislate differently, and NI’s experience does not negate the UK Government’s policy judgement about complexity and workability.
• Death‑at‑work exception does not undermine the principle:
  • The only statutory exception (section 31(3)) deems the contribution condition met where the deceased was an employed earner who died as a result of industrial injury or disease.
  • The Court views this as consistent with — rather than undermining — the contributory principle: the deceased was in work and paying or liable to pay contributions but died before a full contribution record could be built.
  • By contrast, an exception for never‑working individuals would be qualitatively different and would significantly dilute the idea that BSP is an earnings‑related, contributory benefit.
• Separation of powers and the absence of legal standards for the “fairness balance”:
  • Ultimately, the question is whether Parliament made the “right” judgment. The Court reiterates (drawing on SC) that there are no legal standards by which judges can determine how to balance the hardship to a relatively small group against the policy value of preserving a bright‑line contributory rule.
  • Democratically accountable institutions are better placed to assess what is fair, affordable and administratively workable in designing the benefit system.
  • Judicial intervention in such distributive choices risks blurring the line between legal adjudication and political decision‑making, contrary to the separation of powers.

On this basis, the Court holds that the severe impact on people in the respondent’s position (complete loss of BSP entitlement) is outweighed by the importance of the contributory principle, clarity and administrative workability. The discrimination, though real in Thlimmenos terms, is justified: Ground 3 succeeds.

6.4 Disability as a suspect ground in this context

An important nuance is the Court’s treatment of disability as a suspect ground:

• The Court recognises disability as a suspect ground generally, invoking Glor and Guberina and the need for “very weighty reasons” to justify discrimination against persons with disabilities.
• However, it distinguishes this case because:
  • the measure does not target disabled people as such;
  • most disabled persons who can work can satisfy the minimal contribution condition; and
  • the rule does not entrench stereotypes or prevent disabled people’s participation.

The Court therefore does not apply the most stringent intensity of review normally associated with suspect grounds. Instead, the disability dimension is regarded as part of the overall balancing exercise within a still broadly deferential approach.

6.5 Hard cases and bright‑line rules

The Court candidly acknowledges that this is a hard case: a severely disabled person who could never work, leaving a spouse who consequently cannot access a bereavement benefit others receive. However, it affirms a core principle of welfare adjudication:

“Given that a line must be drawn somewhere, the fact that there may be hard cases which fall on the wrong side of a bright line rule should not invalidate the rule provided that it is beneficial overall.”

This is a significant reiteration of the courts’ reluctance to dismantle, via Article 14, the broad categorisations inherent in social security schemes.

6.6 Parliamentary consideration and evidence

The respondent argued that Parliament had not truly turned its mind to the particular situation of those with lifelong inability to work, and that an internal ministerial submission contained errors or misleading statistical inferences. The Court rejects this route for several reasons:

• The formal consultation response explicitly recognised the concern about those “unable to work due to illness or disability” and nonetheless maintained the contribution condition — evidence that Parliament was aware of, and accepted, the trade‑off.
• Parliament also made a conscious choice to include only one narrow exception (death at work), which indicates a deliberate decision not to include broader exceptions.
• The Court warns against conflating the intentions or misunderstandings of the executive with the legislative intention of Parliament: internal ministerial submissions are not legitimate tools for statutory interpretation or for undercutting the respect owed to Parliament’s vote.

Combined with the general caution about judicial intrusion into policy choices, this reinforces a restrained approach to reviewing welfare legislation under Article 14.

7. Remedy: Limits of Section 3 HRA

7.1 Section 3 HRA and the “grain of the legislation”

Section 3 HRA requires courts to read and give effect to primary and subordinate legislation in a way that is compatible with Convention rights “so far as it is possible to do so”. In Ghaidan v Godin‑Mendoza [2004] 2 AC 557, Lord Nicholls emphasised that:

• Section 3 is powerful and can justify expansive interpretations, including reading in words.
• But there are limits: any interpretation must “go with the grain” and be “compatible with the underlying thrust” of the legislation. Courts cannot use section 3 effectively to legislate afresh or to substitute a different policy structure where Parliament has chosen among options.

7.2 Why an exception for lifelong disability goes against the grain

Although the Article 14 claim failed, the Supreme Court addresses Ground 4 and makes clear that the sort of reading‑in adopted in O’Donnell and below would not have been permissible under section 3:

• The centrality of “actual paid contributions”:
  • Section 31(1) makes actual payment of Class 1/2 contributions the core eligibility condition.
  • Parliament deliberately excluded NI credits and voluntary Class 3 contributions.
  • Maintaining the condition despite its low level underlines its symbolic and structural importance to BSP.
• Parliament’s explicit consideration of exceptions:
  • Parliament specifically enacted a in section 31(3) (death at work), reflecting a policy choice as to the only circumstances in which the contribution principle should be relaxed.
  • For the courts to imply a different, and far wider, exception would run counter to that deliberate legislative judgement.
• Structural incompatibility:
  • An exception for those who never worked, for any reason (even disability), would materially change the nature of BSP from a contributory insurance‑type benefit into a hybrid or, at least, non‑contributory in significant classes of case.
  • That move would not be an interpretation but a policy redesign, falling squarely within Parliament’s domain.

The Court therefore concludes (hypothetically) that if the contribution condition had been incompatible, the proper remedy would have been a section 4 declaration of incompatibility, leaving it to Parliament to decide if and how to amend the scheme.

7.3 Consequences for future remedial choices

This aspect of the judgment significantly curbs creative use of section 3 in the welfare context:

• Court‑crafted exceptions that re‑balance a central eligibility condition in a benefit scheme will rarely “go with the grain” of the legislation.
• Where Parliament has considered, and rejected or limited, exceptions, the courts should be especially slow to read in additional ones.
• Litigators seeking change in the architecture of contributory/non‑contributory benefits should therefore expect, at most, a declaration of incompatibility rather than a section 3 re‑write — and only if they can first establish an actual Convention breach.

8. Relationship with O’Donnell and Northern Ireland

8.1 The O’Donnell decision

In O’Donnell v Department for Communities [2020] NICA 36, the Northern Ireland Court of Appeal:

• Held that the equivalent NI BSP contribution condition discriminated under Article 14 + A1P1 through indirect associative disability discrimination (Thlimmenos).
• Concluded that the policy’s application to those unable to work throughout their working life due to disability was “manifestly without reasonable foundation”.
• Used section 3 HRA to read down the NI provision so that the contribution condition was treated as met if the deceased was unable to work throughout their working life due to disability.
• The NI department did not appeal, and instead issued guidance in 2021 implementing this exceptions policy.

8.2 The Supreme Court’s critique

While the Supreme Court does not overrule O’Donnell directly (it is applying different primary legislation and O’Donnell was not before it), it clearly regards its analysis as flawed in several respects:

• Justification: In light of the reasoning in SC and the wide margin appropriate in welfare policy, the Supreme Court cannot agree that the contribution condition, applied to those unable to work, is “manifestly without reasonable foundation”.
• Section 3 reading down: It considers the NI Court of Appeal’s use of section 3 to create an exception incompatible with the contributory structure to be inconsistent with the “grain” of the legislation, for essentially the same reasons as in the GB context.
• Cross‑jurisdictional practice: It finds that the English courts’ deference to O’Donnell under a quasi‑Abbott v Philbin rule was mistaken in constitutional principle.

While not binding on NI courts as a matter of precedent in NI law, the Supreme Court’s reasoning will be highly influential. If a similar challenge arises in NI, it would be difficult for the NI Court of Appeal to adhere to O’Donnell without grappling with and potentially departing from this Supreme Court guidance, subject to the special devolution context.

8.3 Divergence and its resolution

As things stand:

• In Great Britain, BSP entitlement remains strictly tied to “actually paid” contributions, subject only to the industrial injury exception.
• In Northern Ireland, the O’Donnell interpretation — at least until revisited — continues to require decision‑makers to treat the contribution condition as met where the deceased was unable to work throughout their working life due to disability.

This divergence is constitutionally tolerable given devolution, especially since the NI scheme is based on separate (albeit identically worded) primary legislation enacted by the Assembly. Ultimately, any conflict at UK‑wide Convention level could be brought to the Supreme Court on a devolution/compatibility appeal, but Jwanczuk strongly signals what the Court’s view would be.

9. Broader Impact on UK Public Law and Human Rights Litigation

9.1 For courts and tribunals across the UK

The judgment recalibrates how courts and tribunals approach sister‑jurisdiction decisions:

• No quasi‑binding effect of other jurisdictions’ appellate decisions beyond tax law.
• Heightened emphasis on reasoning quality: courts must engage substantively with, and either adopt or critically distinguish, the other court’s reasoning.
• Greater openness to divergence in interim — with the understanding that the Supreme Court is the ultimate arbiter for UK‑wide Convention and statutory questions.

9.2 For welfare and discrimination challenges

On the human rights front, Jwanczuk carries several messages:

• Status is broad, but justification is robust: Claimants may find it easier to establish “other status” (even in complex associative or evaluative forms), but considerably harder to show unjustified discrimination in welfare design.
• Thlimmenos claims face significant headwinds: Complaints about the failure to create exceptions to general rules will struggle where:
  • the rule is a core structural feature (e.g. contribution requirement); and
  • exceptions would involve individualised, administratively onerous assessments.
• Disability‑related claims are not immune from deference: Even where disability is in play, the Court may apply a broad margin where the measure is formally neutral and does not entrench discriminatory stereotypes or prevent participation.
• Campaigning litigation under Article 14 remains possible but is likely to be contained by the Court’s reiterated warning (from SC) about over‑use of Article 14 to second‑guess Parliament’s social policy choices.

9.3 For legislative and policy design

For legislators and policymakers, the judgment offers some guidance:

• Be explicit about aims and trade‑offs: Clear policy statements (e.g. about the contributory principle) and explicit acknowledgement of hard cases put courts on notice that Parliament has consciously weighed competing considerations.
• Use exceptions sparingly and deliberately: Where Parliament chooses only a narrow exception, courts are unlikely to feel able to add wider ones under section 3 HRA.
• Recognise that some divergence is constitutionally acceptable between GB and devolved administrations, especially where legislation and political accountability differ.

10. Complex Concepts Simplified

10.1 Precedent vs persuasive authority across UK jurisdictions

• Binding precedent means a lower court must follow the legal rule laid down by a higher court in the same jurisdiction (e.g. the High Court must follow the Court of Appeal in England & Wales).
• Persuasive authority means a court should take a decision into account and may be strongly influenced by it, but is not obliged to follow it (e.g. an English court considering a Scottish Inner House decision).
• In Jwanczuk, the Supreme Court confirms that decisions from other UK jurisdictions are always persuasive, not binding, outside tax law.

10.2 Article 14 discrimination in simple terms

To show unlawful discrimination under Article 14, a claimant must show:

1. They (or those they are associated with) have some identifiable status (e.g. sex, nationality, disability, or another characteristic that matters in the context).
2. They are treated differently from others in a similar situation, or they are treated the same as others when their situation is materially different (Thlimmenos).
3. The issue concerns the enjoyment of a Convention right (e.g. property rights under A1P1, including many social security benefits).
4. There is no good reason for the difference or sameness: either the aim is not legitimate, or the means go too far compared with the aim (lack of proportionality or fair balance).

In Jwanczuk, the Court finds:

• There is a relevant status (spouse of a person with lifelong inability to work due to disability).
• There is Thlimmenos‑type discrimination (same rule applied to materially different situations).
• The complaint falls within A1P1 because BSP is a welfare benefit.
• But the difference is justified given Parliament’s legitimate aims and the wide margin in welfare policy.

10.3 Contributory vs non‑contributory benefits

• Contributory benefits:
  • Based on having paid National Insurance contributions.
  • Reflect an “insurance” model: you pay in during work, and you (or your dependants) receive benefits when certain events occur (e.g. sickness, unemployment, death).
  • Examples: contribution‑based Jobseeker’s Allowance, certain state pensions, BSP.
• Non‑contributory benefits:
  • Based on need, not contributions, and usually means‑tested or condition‑based.
  • Examples: Universal Credit, many disability benefits, income‑related ESA.

The contributory principle is the idea that some benefits should reward paid work and contributions, partly to motivate work and partly to reduce the stigma associated with means‑tested welfare. BSP is in that category; the Supreme Court treats this principle as a central, legitimate policy choice.

10.4 Section 3 vs section 4 HRA

• Section 3 HRA:
  • Obliges courts to interpret legislation compatibly with Convention rights “so far as possible”.
  • Allows strong, sometimes creative interpretation, including reading words into or out of a statute, provided this does not contradict the statute’s fundamental structure and purpose.
• Section 4 HRA:
  • If a court concludes that primary legislation cannot be read compatibly even using section 3, it may make a declaration of incompatibility.
  • This does not invalidate the legislation or provide a direct remedy, but puts political pressure on Parliament to amend the law.

In Jwanczuk, the Court makes clear that transforming a core contributory requirement by adding a new class of non‑contributors deemed to qualify would go beyond interpretation and become legislation. That lies beyond section 3 and, if there had been a breach, would have required a section 4 declaration.

11. Conclusion

Jwanczuk v Secretary of State for Work and Pensions is an important judgment on multiple fronts. Constitutionally, it re‑anchors the relationship between the UK’s appellate courts: outside tax, decisions from other UK jurisdictions, however respected, are not quasi‑binding; correctness of statutory interpretation prevails over mechanical uniformity, with comity and practicality shaping, not dictating, outcomes.

In human rights law, the Court affirms a generous approach to the concept of “other status”, recognising a nuanced, associative disability‑related status. Yet it also reaffirms, with some force, that Article 14 challenges to welfare legislation face a high justificatory threshold, especially where Parliament has consciously chosen to preserve core structural features such as the contributory principle and bright‑line eligibility rules.

On remedies, the Court underscores the limits of section 3 HRA: where Parliament has deliberately designed a contributory scheme and carefully circumscribed exceptions, it is not for the courts to create further exceptions in the name of compatibility. In such cases, if a breach were found, only Parliament can legitimately redesign the scheme following a section 4 declaration.

For Mr Jwanczuk personally, the outcome is undeniably harsh; for the law, the decision provides clarity. It sharpens the boundaries between legal adjudication and political choice, ensuring that while Convention rights remain a powerful constraint, they do not become a vehicle for courts to re‑write the fundamental architecture of the welfare state or to extend the doctrine of precedent beyond its proper constitutional limits.