Declaration of Incompatibility in Discriminatory Benefit Claims: Kelly v Secretary of State for Work and Pensions ([2024] EWCA Civ 613)

Introduction

The case of Kelly v Secretary of State for Work and Pensions ([2024] EWCA Civ 613) addresses significant issues concerning the compatibility of existing social security legislation with the European Convention on Human Rights (ECHR). The appellant, Ms. Kelly, contested the refusal of her claim for bereavement benefits under sections 36 and 39B of the Social Security Benefits and Contributions Act 1992 ("the 1992 Act"). The Secretary of State denied her claim on the basis that Ms. Kelly was neither married nor in a civil partnership. The central legal question revolves around whether these statutory provisions are discriminatory and incompatible with Ms. Kelly's Convention rights, specifically under Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the ECHR.

This appeal proceeded through various judicial levels, ultimately reaching the England and Wales Court of Appeal (Civil Division). The judgment not only scrutinizes the legislative framework governing bereavement benefits but also examines the interplay between domestic law and human rights obligations, particularly in the context of evolving recognition of same-sex partnerships.

Summary of the Judgment

The Court of Appeal, presided over by Elisabeth Laing LJ, upheld the decision of the Upper Tribunal (UT), dismissing Ms. Kelly's appeal. The core finding was that sections 36 and 39B of the 1992 Act, though discriminatory in their original application, had been largely repealed or amended through subsequent legislation, notably the Pensions Act 2014 and the Civil Partnership (Opposite-sex Couples) Regulations 2019. Consequently, these provisions were deemed not to be incompatible with Ms. Kelly's Convention rights at the material time of her claim. Furthermore, even if any residual incompatibility were identified, the court determined that issuing a declaration of incompatibility would not be appropriate, given the legislative context and the nature of the discrimination involved.

Analysis

Precedents Cited

The judgment extensively references several key precedents that have shaped the legal landscape concerning discrimination and human rights in the context of civil partnerships and bureaucratic benefits. Notably:

Steinfeld v Secretary of State for International Development [2018] UKSC 32; This case recognized that prohibiting opposite-sex couples from entering into civil partnerships constituted discrimination under Article 14 of the ECHR read in conjunction with Article 8. It mandated legislative reform to eliminate such discrimination.
In re McLaughlin [2018] UKSC 48; This decision declared certain provisions of the Social Security Contributions and Benefits Act 1992 incompatible, particularly focusing on widowed parent’s allowance and its linkage to civil partnerships, thereby prompting legislative amendments.
Wilson v First County Trust Limited (No 2) [2003] UKHL 40; This case provided insights into how declarations of incompatibility should be approached, emphasizing their role in signaling legislative issues rather than serving as a direct remedy for applicants.
R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439; This case highlighted the limitations and appropriate use of declarations of incompatibility, stressing the separation of judicial and legislative responsibilities.
R (Nicklinson) v Secretary of State for Justice [2014] UKSC 38; Discussed the discretion courts hold in issuing declarations of incompatibility and the importance of aligning such actions with broader legislative processes.
Bellinger v Bellinger [2003] UKHL 21; Addressed the proportionality of discriminatory practices and their justifications under ECHR standards.

Legal Reasoning

The court’s legal reasoning hinged on several pivotal points:

Definition and Scope of Convention Rights: The judgment clarified that the Human Rights Act 1998 (HRA) defines Convention rights predominantly excluding Article 13 (right to an effective remedy). The focus remained on Articles 2-12, 14 of the ECHR, and relevant protocols.
Legislative Amendments and Transitional Provisions: The court examined how subsequent legislative changes, particularly the Pensions Act 2014 and the Civil Partnership (Opposite-sex Couples) Regulations 2019, had effectively addressed the discrimination initially present in sections 36 and 39B of the 1992 Act. These amendments allowed opposite-sex couples to enter civil partnerships, thereby nullifying the discriminatory barriers that previously existed.
Jurisdiction to Declare Incompatibility: The Upper Tribunal acknowledged its lack of jurisdiction to issue a declaration of incompatibility under the HRA. This limitation was pivotal in the appellate court's consideration.
Justification and Proportionality: The court evaluated whether any discriminatory differences in treatment between Ms. Kelly and the proposed comparators were justified under Article 14. It concluded that the differences were based on legitimate, non-discriminatory reasons related to the transitional provisions and the timing of the legislative changes.
Effective Remedy: The judgment emphasized that the HRA does not provide a general right to compensation for past discriminatory acts. Instead, remedies are confined to declarations of incompatibility and, where applicable, damages as deemed just by the court.

Impact

This judgment reinforces the principle that legislative changes addressing discrimination are paramount and that judicial interventions, such as declarations of incompatibility, are not substitutes for parliamentary action. It underscores the importance of timing and legislative context in human rights claims, particularly in areas where the law evolves to rectify historical injustices. The decision serves as a precedent for future cases where claimants seek judicial remedies for discrimination that has been or is being addressed through legislative means.

Additionally, the judgment clarifies the limitations of tribunals and lower courts in issuing declarations of incompatibility, reinforcing the role of higher courts in safeguarding human rights through the HRA framework.

Complex Concepts Simplified

Declaration of Incompatibility

A declaration of incompatibility is a formal statement by a UK court that a particular provision of primary or subordinate legislation is incompatible with the rights protected under the ECHR. Importantly, such declarations do not invalidate the law but signal to Parliament that legislative reform is needed.

Human Rights Act 1998 (HRA)

The Human Rights Act 1998 (HRA) incorporates the ECHR into domestic UK law, allowing courts to hear cases on human rights breaches. The Act mandates that UK legislation be interpreted, as far as possible, in a manner compatible with Convention rights.

Article 14 ECHR

Article 14 of the ECHR prohibits discrimination on various grounds, including sexual orientation, ensuring equal protection under the law.

Article 8 ECHR

Article 8 protects the right to respect for private and family life, encompassing relationships and personal autonomy.

Conclusion

The Court of Appeal's decision in Kelly v Secretary of State for Work and Pensions reaffirms the judiciary's cautious approach in addressing statutory incompatibilities through declarations. By recognizing the comprehensive legislative amendments that rectified previous discriminations, the court emphasized the primacy of parliamentary action in remedying human rights violations. This judgment highlights the structured interplay between courts and the legislature under the Human Rights Act, demonstrating that while courts can identify and declare incompatibilities, the ultimate responsibility to enact remedial legislation rests with Parliament. Consequently, the case serves as a crucial reference for understanding the mechanisms through which human rights protections are upheld and enforced within the UK’s legal framework.