Kelly v Secretary of State for Work and Pensions

Factual and Procedural Background

The Appellant, referred to as Ms Kelly, submitted a 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 refused the claim on the basis that Ms Kelly was neither married nor in a civil partnership. She appealed this refusal. The appeal was initially heard by the Upper Tribunal (Administrative Appeals Chamber) ("the UT") in June 2022. The appeal before this court arises from the UT's decision on two joined appeals, including Ms Kelly's.

Historically, after 2014, homosexual couples could enter civil partnerships and marry, whereas heterosexual couples could only marry. This distinction was later recognized as discriminatory and addressed by legislation. Ms Kelly sought a declaration that sections 36 and 39B of the 1992 Act are incompatible with her Convention rights. Although these sections have been largely repealed, they remain in force for limited purposes due to transitional provisions.

Ms Kelly's claim arose after the death of her long-term male partner in December 2016. She filed her bereavement benefit claim in February 2017, which was refused in March 2017. She appealed to the First-tier Tribunal ("the F-tT"), which dismissed her appeal. The UT set aside that decision, but the F-tT dismissed her appeal again, leading to a further appeal to the UT.

The UT noted that Ms Kelly could have married her partner but chose not to for personal reasons. The tribunal recognized that between 2005 and 2014, same-sex couples could enter civil partnerships and opposite-sex couples could marry, creating a form of parity. After 2014, same-sex couples could also marry, but opposite-sex couples could not enter civil partnerships, creating a discrepancy.

Legal Issues Presented

1. Whether sections 36 and 39B of the Social Security Contributions and Benefits Act 1992 discriminate against Ms Kelly contrary to article 14 of the European Convention on Human Rights (ECHR) read with article 8 or Article 1 of Protocol 1 (A1P1).
2. Whether this court should make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA) given that the UT lacked jurisdiction to do so.

Arguments of the Parties

Appellant's Arguments

• The Civil Partnerships Act 2004 ("CPA") discriminated by allowing civil partnerships only for homosexual couples, excluding heterosexual couples, which affected access to social security benefits linked to civil partnerships.
• Sections 36 and 39B of the 1992 Act, though repealed, remain relevant due to transitional provisions applying to claimants who made timely claims but had not received payment, making them proper comparators for Ms Kelly.
• The discrimination identified in the Supreme Court decision in Steinfeld related to access to civil partnerships and was not about access to benefits. Ms Kelly's claim concerns access to benefits, which was not addressed in Steinfeld.
• Parliament remedied the discrimination identified in Steinfeld but did not address remedies relating to access to benefits.
• By analogy with McLaughlin, where a declaration of incompatibility was made despite legislative changes, Ms Kelly argued that a declaration of incompatibility should be made here to prompt Parliament to consider retrospective remedies for past discrimination.
• The discrimination occurred at the time of refusal of Ms Kelly's claim in March 2017, and no further discrimination could arise after April 2017 due to the effect of the 2014 Act and transitional provisions.
• The 2017 transitional provisions maintain sections 36 and 39B in force for certain claimants, creating a continuing difference in treatment between such claimants and Ms Kelly.
• Ms Kelly's sexual orientation constitutes an "other status" for the purposes of article 14, and the difference in treatment is not justified.
• Ms Kelly sought a declaration of incompatibility as a means to obtain an effective remedy for past discrimination, including potential retrospective compensation.

Respondent's Arguments (Secretary of State)

• The real discrimination at issue was the inability of Ms Kelly to enter a civil partnership, which was the same complaint as in Steinfeld.
• Parliament has remedied that discrimination by allowing opposite-sex civil partnerships since 2019, eliminating any current incompatibility.
• The complaint about sections 36 and 39B does not stand independently; it is essentially a complaint about access to civil partnerships.
• The UT was correct to find no jurisdiction to make a declaration of incompatibility, and this court should not make one.
• Ms Kelly's claim for a declaration of incompatibility is effectively an attempt to use the court to obtain retrospective compensation, which is not an appropriate use of the section 4 power.
• The 2017 transitional provisions do not extend entitlement periods for benefits, and any sections 36 and 39B provisions still in force apply only in theoretical or very limited circumstances.
• The appropriate comparator is a homosexual partner in a civil partnership, and Ms Kelly does not have an analogous position to those covered by the transitional provisions.
• Even if discrimination existed, it is justified or remedied, and no current incompatibility remains.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Steinfeld v Secretary of State for International Development [2018] UKSC 32; [2020] AC 1	Recognition of discrimination where same-sex couples had a choice of civil partnership or marriage, unavailable to opposite-sex couples.	The UT and this court considered Steinfeld as establishing the core discrimination in access to civil partnerships, which Parliament has since remedied.
In re McLaughlin [2018] UKSC 48; [2018] 1 WLR 4250	Declaration of incompatibility may be made even if legislation is repealed or amended, where transitional provisions keep it in force for some claimants.	Appellant relied on McLaughlin to argue for a similar declaration and retrospective remedy; court distinguished it due to differences in benefit duration and legislative context.
Wilson v First County Trust Limited (No 2) [2003] UKHL 40; [2004] 1 AC 816	Declarations of incompatibility relate to current legislation; no declaration for repealed provisions.	Court cited Lord Hobhouse's reasoning to support that declarations should not be made for repealed or no longer effective legislation.
R (Nicklinson) v Secretary of State for Justice [2014] UKSC 38; [2015] AC 657	Small numbers of affected persons do not preclude declarations of incompatibility.	Referenced to counter arguments against declarations based on limited scope of affected individuals.
Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467	Principles relating to declarations of incompatibility and human rights.	Referenced in relation to the remedial role of declarations of incompatibility.
James v Eastleigh Borough Council [1990] 2 AC 751	Use of ostensibly neutral criteria as proxy for discrimination on a protected characteristic.	Analogous reasoning used to argue that marriage or civil partnership status operated as a proxy for sexual orientation discrimination.
Brown v Stott [2003] 1 AC 681	Interpretation of the Human Rights Act and the omission of article 13 (right to effective remedy) from 'Convention rights'.	Supported the assumption that the HRA provides the domestic remedy scheme, rendering article 13 superfluous.
Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10; [2002] 2 AC 291	Support for the remedial scheme under the HRA and interpretation of Convention rights.	Used to confirm the domestic remedial framework under the HRA.
R (Chester) v Secretary of State for Justice [2010] EWCA Civ 1439; [2011] 1 WLR 1436; [2013] UKSC 63; [2014] AC 271	Appropriate use of declarations of incompatibility and judicial discretion.	Referenced to demonstrate that repeated declarations of incompatibility without remedial action are not appropriate.

Court's Reasoning and Analysis

The court began by considering the discrimination claim under article 14 of the ECHR read with article 8 and Article 1 of Protocol 1. It accepted that Ms Kelly was treated differently from certain comparators who remained entitled to benefits under transitional provisions. However, the court found that this difference in treatment was not based on sexual orientation but on differing factual circumstances: the comparators had either not made claims or were unaware of their partner's death, whereas Ms Kelly had made a timely claim, received a refusal, and exercised her right of appeal.

The court concluded that the difference in treatment was objectively justified because the transitional provisions exist to allow claimants in uncertain circumstances to make or have their claims considered, whereas Ms Kelly had an established claim process concluded.

Even assuming discrimination existed and was unjustified, the court exercised its discretion not to make a declaration of incompatibility. The reasoning included that the core discrimination identified related to the unavailability of opposite-sex civil partnerships, which had already been remedied legislatively following the Steinfeld decision.

The court emphasized that sections 36 and 39B of the 1992 Act are largely repealed and survive only due to transitional provisions, and any current incompatibility is minimal or "ghostly." Furthermore, the court noted the statutory context, including provisions preventing retrospective correction of benefits following erroneous decisions, making it unlikely that a declaration would lead to retrospective remedies.

The court also explained that the Human Rights Act provides a carefully crafted remedial scheme that does not guarantee an effective remedy in the sense argued by Ms Kelly, particularly as article 13 of the ECHR (right to an effective remedy) is not incorporated as a Convention right under the HRA.

Accordingly, the court found no basis to grant a declaration of incompatibility and recognized that Parliament and the executive retain the ultimate authority to remedy legislative incompatibilities.

Holding and Implications

The court’s final decision was to dismiss the appeal.

Holding: The court held that sections 36 and 39B of the Social Security Contributions and Benefits Act 1992, to the limited extent they remain in force, do not discriminate against Ms Kelly contrary to article 14 read with Article 1 of Protocol 1 or article 8 of the European Convention on Human Rights. Alternatively, if discrimination exists, it would not be appropriate for the court to make a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Implications: The decision means that no declaration of incompatibility is made in this case, leaving the existing legislative framework intact. The court recognized that Parliament has already remedied the primary discrimination identified in the Steinfeld case by permitting opposite-sex civil partnerships. This judgment clarifies the limited role of courts in making declarations of incompatibility for repealed or transitional legislation and confirms that retrospective remedies for past discrimination are matters for Parliament rather than the courts. No new precedent was established beyond affirming these principles in this statutory and factual context.