Judicial Restraint After a Remedial Order: No “Levelling Up” Beyond Parliament’s Chosen Retrospective Date for Bereavement Benefits

1. Introduction

AD & Anor v Department for Communities [2025] NICA 71 is an unusual (and largely unprecedented) referral to the Northern Ireland Court of Appeal (“NICA”) by the Appeal Tribunal under Schedule 10 to the Northern Ireland Act 1998. The two appellants—AD and Lelia Joanne Armstrong—were each refused bereavement benefits because they were cohabiting (not married or in a civil partnership) with the deceased.

Following judicial findings of incompatibility in related schemes, the UK Government responded via a section 10 HRA Remedial Order—the Bereavement Benefits (Remedial) Order 2023—which extended eligibility to cohabitants but only with retrospective effect from 30 August 2018. Both appellants sought payment for periods before that date, contending (in different ways) that the Tribunal/court should grant an effective remedy for conceded discrimination contrary to Article 14 read with Article 8 ECHR.

The central issue was therefore remedial: where discrimination is accepted and Parliament has responded by Remedial Order with a limited backdating date, should a tribunal/court nonetheless “level up” by granting payments for earlier periods, or issue further declarations?

2. Summary of the Judgment

NICA held that, despite acceptance by the Department for Communities (“DfC”) that the pre-30 August 2018 refusals were incompatible with the appellants’ Article 8/14 rights, the court should refuse the specific remedies sought. Exercising discretion, NICA concluded there was a “preponderance of factors” against granting relief that would, in substance, undermine the remedial settlement chosen by Parliament/executive under the HRA 1998 scheme.

In effect, NICA’s approach means the Tribunal is expected to dismiss both appeals insofar as they seek entitlement to payments for periods prior to 30 August 2018. The judgment strongly emphasises the constitutional architecture of the HRA: courts may identify incompatibility, but the extent and retrospectivity of legislative repair is for Parliament/executive, not tribunals/courts acting indirectly through individual claims.

3. Analysis

3.1 Precedents Cited

  • Re Alconbury Developments [2001] UKHL 23
    Cited to illustrate the constitutional shift after the HRA: “compatibility” of Parliament’s conferral of powers became a justiciable question. NICA uses it to frame the broader “brave new world” context while reaffirming that the HRA stops short of judicial annulment of primary legislation.
  • In Re McLaughlin [2018] UKSC 48
    The foundational incompatibility decision for WPA in Northern Ireland: section 39A of the Social Security Contributions and Benefits (NI) Act 1992 unlawfully excluded cohabiting survivors with children. NICA treats McLaughlin as establishing the underlying discrimination and as anchoring Parliament’s chosen retrospective date (the judgment date, 30 August 2018).
  • R(Jackson) v Secretary of State for Work and Pensions [2020] 1 WLR 1441 (also given as [2020] EWHC 183 (Admin))
    The corresponding incompatibility for BSP in Great Britain. DfC accepted that, in substance, Northern Ireland’s counterpart provision (section 29 of the Pensions Act (NI) 2015) was incompatible on the same basis.
  • R (Chester) v Secretary of State for Justice [2013] UKSC 63
    Central to NICA’s refusal to issue “repeat” declarations. Chester shows the Supreme Court declining to make a second declaration of incompatibility where one already existed and the matter lay with Parliament. NICA considered these cases “a fortiori” Chester because here a remedial response had actually been enacted.
  • Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47
    Used to contrast remedial outcomes where the discriminatory rule is in subordinate legislation. The Supreme Court “levelled up” by allowing the individual’s benefit appeal (rather than issuing broad relief). NICA draws from Mathieson but treats it as context-specific and not determinative where a Remedial Order has subsequently defined the scope of repair.
  • Secretary of State for Work and Pensions v Carmichael [2018] 1WLR 3429, JT v First-tier Tribunal [2019] 1 WLR 1313, and RR v Secretary of State for Work and Pensions [2019] UKSC 52
    This line addresses when decision-makers may disapply subordinate legislation that produces Convention-incompatible outcomes. NICA treats RR (disapplying subordinate legislation is not “unconstitutional”) as distinguishable because RR lacked the crucial features here: (i) a prior DOI and (ii) a legislative remedial response fixing the extent of retrospectivity. NICA also emphasises RR’s own caution where it is unclear how the statutory scheme can operate without the offending provision.
  • O'Donnell v Department for Communities [2020] NICA 36 and R (Jwanczuk) v Secretary of State for Work and Pensions [2023] EWCA Civ 1156
    O’Donnell is treated as a section 3 “reading in” case, not a template for overriding a Remedial Order’s temporal boundary. The reference to parity not justifying discrimination did not assist the appellants because the Departments were not arguing parity as justification for discrimination—only as a factor relevant to remedy.
  • R (Elan-Cane) v The Secretary of State for the Home Department [2021] UKSC 56
    Reinforces parliamentary sovereignty within the HRA scheme. NICA notes, too, Elan-Cane’s discussion of the “manifestly without reasonable foundation” approach in social security discrimination cases (via Humphreys v Revenue and Customs Commrs [2012] UKSC 18 and R (RJM) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2008] UKHL 63), but finds it does not advance the appellants’ position given discrimination was conceded and the dispute was remedial.
  • Department for Justice v JR 123 [2023] NI 30
    Used to underline the general nature of a declaration of incompatibility versus personal remedies. This supported DWP’s submission that Ms Armstrong’s requested DOI would be a broad constitutional pronouncement with limited practical utility given Parliament had already addressed the incompatibility via the Remedial Order.
  • Steinfeld v Secretary of State for International Development [2018] UKSC 32 and Kelly v Secretary of State for Work and Pensions [2024] EWCA Civ 613
    Steinfeld illustrates how a DOI prompts legislative repair. Kelly was highly influential: it rejected the notion that the HRA guarantees an “effective remedy” (noting Article 13 is not incorporated) and cautioned against using a DOI as a “back door” to compensation/retrospective entitlements once Parliament has chosen a limited retrospective response. NICA found Kelly’s remedial analysis persuasive even if not binding.
  • Creednz v Governor General [1981] 1 NZLR and Re Findlay [1985] AC 318
    Invoked for the principle guiding exercise of discretion: courts should take account of considerations Parliament must have intended to be relevant to the statutory discretion.
  • Re S (Minors) [2002] UKHL 10 and A-G's Reference (No 2 of 2001) [2003] UKHL 68
    Cited for the “elasticity” of the remedial discretion under section 8 HRA.

3.2 Legal Reasoning

(A) The HRA constitutional settlement: declaration, not annulment
NICA places unusual weight on the “architecture” of the HRA: a declaration of incompatibility is deliberately non-annulling and non-binding (section 4(6)), leaving the “next step” to Parliament/executive. The court emphasises that the HRA permits even the perpetuation of incompatibility: the executive/legislature may respond partially, or not at all.

(B) The Remedial Order as an intervening constitutional fact
The Bereavement Benefits (Remedial) Order 2023 was treated as the decisive intervening event: it removed the incompatibility prospectively and partially retrospectively from 30 August 2018, after extensive parliamentary scrutiny (including by the JCHR). NICA considered that granting relief to bridge earlier periods would amount to judicial interference with the legislative choice as to retrospectivity.

(C) Distinguishing “disapply subordinate legislation” cases (RR/JT/Mathieson)
The appellants’ strategy sought to reframe their claims as conventional section 6 unlawfulness cases in which a tribunal/court can simply “disapply” an incompatible rule and “level up.” NICA rejected that reframing because Parliament had already “chosen” (in substance) a levelling-down temporal boundary by limiting backdating in the Remedial Order. In this setting, judicial “levelling up” would collide with parliamentary sovereignty and legal certainty.

(D) Discretion and the court’s balancing exercise
NICA accepted it had power to grant remedies (and that section 8 was treated by all parties as the relevant channel), but stressed this is discretionary. Applying the Creednz/Findlay approach, the court weighed factors for and against relief. The appellants’ factors—vindication, clarification, encouragement to Parliament, and assistance for Strasbourg—were found weak in this specific procedural and constitutional context.

(E) Factors against relief: parity, non-retrospectivity, and statutory coherence
The court’s “contra” factors were practical and constitutional:

  • Parity: granting payments in Northern Ireland beyond GB’s position would disrupt parity and potentially require local funding.
  • Strong policy against retrospectivity in social security, tied to systemic interactions (other benefits, tax, household impacts), and reflected in statutory prospective-effect rules.
  • Respect for the Schedule 2 remedial-order process and the extensive parliamentary consideration already given to how far back to remedy.
  • Section 6(6) HRA: the HRA precludes challenges framed as failures to make primary legislation or a Remedial Order, reinforcing that courts should not indirectly compel broader remedial action through individual benefit appeals.
  • Persuasive authority of Kelly: no general “effective remedy” entitlement under the HRA; no useful purpose in further declarations where Parliament has already remedied and chosen a temporal limit.

(F) Resulting rule/lesson
The judgment establishes a strong practical precedent in Northern Ireland: once Parliament/executive has responded to a DOI by Remedial Order that fixes a retrospective start date, tribunals/courts should be slow—indeed generally disinclined—to grant individual relief that would effectively extend retrospectivity beyond that date, even where discrimination for the earlier period is conceded.

3.3 Impact

  • For social security appeals: claimants who were discriminated against before a remedial start date may face dismissal of tribunal appeals seeking earlier entitlement, where granting such entitlement would cut across Parliament’s chosen temporal compromise.
  • For remedial-order litigation strategy: the decision discourages attempts to use section 6 unlawfulness findings to obtain “backdoor” retrospectivity after a remedial order has set the boundary.
  • For constitutional practice under the HRA: NICA aligns Northern Ireland remedial practice with a restrained, Parliament-respecting model of post-DOI adjudication, emphasising that the HRA is not a general compensation code and does not constitutionalise “full” retrospective correction.
  • For parity-sensitive devolved fields: parity is not a justification for discrimination (per O’Donnell), but may be a significant consideration when deciding whether to grant discretionary remedies that would create NI-GB divergence.

4. Complex Concepts Simplified

  • Declaration of incompatibility (DOI): a formal statement (section 4 HRA) that a statute is incompatible with a Convention right. It does not invalidate the statute and does not automatically change the law.
  • Remedial Order (section 10 HRA): a fast-track legislative tool allowing ministers (with parliamentary oversight under Schedule 2) to amend legislation to remove incompatibility. It can be retrospective, but the extent of retrospectivity is a policy choice.
  • Primary vs subordinate legislation (HRA definitions): the HRA treats some Northern Ireland enactments (e.g., Acts of the Parliament of Northern Ireland) as “subordinate” for HRA purposes, affecting whether decision-makers can disapply them more readily.
  • Section 6(2) HRA: a public authority (including a tribunal) does not act unlawfully if it could not have acted differently because primary legislation required the incompatible outcome.
  • Section 6(6) HRA: “an act” includes a failure to act, but not a failure to introduce legislation or make a Remedial Order—limiting litigation that seeks to force legislative action via section 6.
  • “Levelling up” vs “levelling down”: where discrimination exists, a legislator may remove it by raising the disadvantaged group up to the advantaged group (levelling up) or by reducing the advantaged group’s position (levelling down). NICA’s key point is that where Parliament has fixed a temporal boundary in its remedial response, tribunals/courts cannot simply “level up” past that boundary.
  • “Just satisfaction” (section 8 HRA): damages are not automatic; they may be awarded only if necessary to afford “just satisfaction,” reflecting Strasbourg principles under Article 41 ECHR.
  • “Effective remedy” and Article 13: Article 13 ECHR is not incorporated as a “Convention right” under the HRA, so the HRA does not itself guarantee an “effective remedy” in the broad sense sometimes argued by claimants.

5. Conclusion

[2025] NICA 71 is a remedial-constitutional decision more than a discrimination decision: discrimination was conceded, but the court refused to convert that concession into retrospective monetary entitlement beyond the line drawn by the Bereavement Benefits (Remedial) Order 2023. The court’s key contribution is its insistence that, under the HRA, the existence of an incompatibility does not entail a judicial power (or duty) to supply full retrospectivity once Parliament/executive has responded by remedial legislation with a limited retrospective reach.

The judgment therefore strengthens a principle of post-remedial-order judicial restraint: where a DOI has been met by a considered remedial scheme, the proper forum for arguments about “going further back” is primarily the political-legislative process, not individual benefit appeals seeking tribunals/courts to extend retrospectivity by adjudication.