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AD & Anor v Department for Communities
Summary of Judgment
Factual and Procedural Background
The Appeal Tribunal referred two pending appeals to the Court of Appeal under Schedule 10 to the Northern Ireland Act 1998. The first appellant had an unmarried cohabiting relationship; her partner died on 8 June 2017 and her claim for Bereavement Support Payment (BSP) was refused because she was not married. The second appellant had an unmarried cohabiting relationship; her partner died on 21 September 2014 and her claim for Widowed Parents Allowance (WPA) was refused for the same reason. After judicial declarations of incompatibility in higher courts, the Bereavement Benefits (Remedial) Order 2023 ("the Remedial Order") was made with retrospective effect from 30 August 2018, resulting in both appellants being entitled only to backdated benefit from that date. Each appellant pursued further claims and administrative reconsiderations; their appeals to the Tribunal remained pending when the Tribunal exercised its power to refer devolution issues to the Court of Appeal. Company A (the former decision-maker) and Company B (interested party) participated in the referrals. The Court of Appeal heard the consolidated matter and reserved final order pending draft orders from the parties.
Legal Issues Presented
- In light of the decisions in Re McLaughlin and R (Jackson) v Secretary of State for Work and Pensions, if an appellant establishes a breach of Article 8 taken with Article 14 ECHR, what remedy, if any, should follow arising out of Company A's refusal to grant WPA or BSP for any period prior to 30 August 2018 given the operation of the Bereavement Benefits (Remedial) Order 2023?
- Whether the Tribunal (or this court) is required by section 6 of the Human Rights Act 1998 and/or section 24(1)(a) of the Northern Ireland Act 1998 to allow the appellants' appeals for periods prior to 30 August 2018 despite the Remedial Order and related statutory framework.
Arguments of the Parties
Appellants' Arguments
- Each appellant relied on established findings of incompatibility (Jackson/Re McLaughlin) and contended that, applying section 6 HRA 1998 (and, for one appellant, section 24(1)(a) Northern Ireland Act 1998), the Tribunal must allow their appeals for the periods prior to 30 August 2018 and award the relevant bereavement benefit for those periods.
- They sought specific remedies: the first appellant sought a declaration entitling her to BSP for 8 June 2017 to 30 August 2018 and that the Tribunal determine her appeal accordingly; the second appellant sought a section 4 declaration that the post-Remedial Order version of the statutory provision was incompatible insofar as it precluded WPA for 21 September 2014 to 29 August 2018.
Company A's Arguments (Respondent)
- Company A accepted that the refusals for the periods prior to 30 August 2018 were incompatible with Articles 8 and 14 ECHR in light of Jackson and Re McLaughlin, but submitted that no further remedial relief should be granted by this court or the Tribunal because Parliament and the executive had responded by making the Remedial Order.
- Company A argued that granting the remedies sought would undermine the constitutional allocation under HRA 1998 (sections 6, 10 and 21), would impermissibly intrude on parliamentary sovereignty and the remedial scheme, and that a challenge to a failure to make a Remedial Order is precluded by section 6(6).
- As alternative relief, Company A proposed at most a declaration that the appellants suffered discrimination contrary to Article 8 read with Article 14 for the periods in question.
Company B's Position (Interested Party)
- Company B participated and supported submissions aligned with Company A, emphasising the effect of the Remedial Order and the statutory and policy context (including parity and the limited retrospectivity of social security remediation).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Re Alconbury Developments [2001] UKHL 23 | Illustration of HRA 1998's constitutional impact | Used as an early example of HRA changing constitutional arrangements and courts addressing compatibility of legislation with Convention rights. |
| R (Jackson) v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) | Found statutory provision incompatible with Article 14 read with Article 8 in relation to BSP eligibility | Accepted as establishing incompatibility relevant to the first appellant's case. |
| Re McLaughlin [2018] UKSC 48 | Declaration that a statutory provision was incompatible with Article 14 read with Article 8 concerning WPA | Accepted as establishing incompatibility relevant to the second appellant's case. |
| R (Chester) v Secretary of State for Justice [2013] UKSC 63 | Refusal to make a further declaration of incompatibility where Parliament should complete consideration | Treated as directly relevant to the question of whether a court should make a further DOI where Parliament has had the opportunity to respond. |
| Smith v Scott 2007 SC 345 | Prior declaration of incompatibility (referenced in Chester) | Referenced in Lord Mance's reasoning in Chester to explain reluctance to make a further DOI. |
| Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 | Approach to remedy for subordinate legislation incompatibility (ordering the relief the Tribunal should have granted) | Illustrated that the Supreme Court can grant the specific relief the tribunal should have granted where subordinate legislation is incompatible. |
| Secretary of State for Work and Pensions v Carmichael [2018] 1 WLR 3429 | Court of Appeal majority view that it was not empowered to disapply subordinate legislation in certain circumstances | Cited as part of the jurisprudential debate; contrasted with later authorities. |
| JT v First-tier Tribunal [2019] 1 WLR 1313 | Where subordinate legislation cannot be given effect compatibly, court treats it as having no effect | Relied on as authority for treating incompatible subordinate provisions as inoperative where identifiable; relevant to the first appellant's submissions. |
| RR v Secretary of State for Work and Pensions [2019] UKSC 52 | Public authorities and courts can disapply subordinate legislation necessary to comply with HRA | Explained that decision-makers can disregard subordinate provisions incompatible with Convention rights; court found RR distinguishable on facts here (presence of DOI and remedial order). |
| O'Donnell v Department for Communities [2020] NICA 36 | Application of section 3 reading-in to render subordinate legislation compatible | Noted as a section 3 case and not materially assisting these referrals, though parties cited a passage rejecting parity as justification for discrimination. |
| R (Jwanczuk) v Secretary of State for Work and Pensions [2023] EWCA Civ 1156 | Critique of O'Donnell; section 3 reading-down cases | Mentioned but held not material because it is a section 3 case. |
| R (Elan-Cane) v The Secretary of State for the Home Department [2021] UKSC 56 | Reaffirmation of Parliamentary sovereignty and reference to wide margin of appreciation in social security discrimination cases | Cited for the importance of parliamentary sovereignty and the margin of appreciation in social security discrimination contexts; not decisive for appellants. |
| Humphreys v Revenue and Customs Commrs [2012] UKSC 18 | Standard for justification in social security discrimination (wide margin of appreciation) | Referred to in discussion of margin of appreciation applied domestically. |
| Steinfeld v Secretary of State for International Development [2018] UKSC 32 | Declaration of incompatibility leading to legislative change (extension of civil partnerships) | Used as an example where Parliament subsequently enacted primary legislation to cure incompatibility; compared to the present remedial response. |
| Kelly v Secretary of State for Work and Pensions [2024] EWCA Civ 613 | Court of Appeal reasoning on inappropriateness of further DOI and limits of HRA remedies for past discrimination | Accepted as persuasive: Court applied Kelly's reasons for declining wider remedies and for focusing on the HRA's remedial scheme and parliamentary role. |
| Department for Justice v JR 123 [2023] NI 30 | Declaration of incompatibility is a general remedy with broad application beyond the individual | Cited to support the proposition that a DOI is general in nature and contrasts with remedies personal to an appellant. |
| Re JR 123 [2025] UKSC 8 | Consideration of section 4 declarations (mentioned in postscript) | Mentioned in postscript as a later authority on section 4 declarations; no submissions were sought on it in these appeals. |
| Re S (Minors) [2002] UKHL 10 | Elasticity of judicial discretion in HRA remedies | Cited for the principle that courts have elasticity in remedies under section 8 HRA 1998. |
| A-G's Reference (No 2 of 2001) [2003] UKHL 68 | Further authority on remedial discretion under HRA | Referenced alongside Re S to illustrate the discretionary nature of remedies. |
| Creednz v Governor General [1981] 1 NZLR; Re Findlay [1985] AC 318 | Principle that courts should consider broadly the factors Parliament would have intended when exercising remedial discretion | Applied as guiding principle for the court's discretionary assessment (the "Creednz/Findlay" principle). |
Court's Reasoning and Analysis
The court began by reiterating the constitutional framework created by the Human Rights Act 1998: courts may declare primary legislation incompatible (a DOI) but cannot annul or amend primary legislation; remedial action under section 10 is for Ministers/Parliament. The referrals arose because the Tribunal posed a devolution issue under Schedule 10 concerning whether, in light of established incompatibility findings (Re McLaughlin and R (Jackson)), any remedy should be awarded for periods prior to 30 August 2018 notwithstanding the Remedial Order.
The court analysed differences between the two appellants' legal matrices (one involving subordinate legislation amended by the Remedial Order; the other involving primary legislation subject to a prior DOI and then addressed by the Remedial Order). It reviewed relevant authority (including Chester, Mathieson, Carmichael, JT, RR, O'Donnell, Steinfeld and Kelly) and extracted principles: (a) the discretionary nature of remedies under HRA 1998, (b) the special constitutional role of Parliament when primary legislation is declared incompatible, (c) differing treatments of subordinate legislation where a decision-maker may disregard incompatible subordinate provisions but cannot infringe primary legislation, and (d) the significance of a parliamentary/executive remedial response (Remedial Order) to a DOI.
The court balanced factors favouring relief (vindication of rights; legal clarification; encouragement of further remedial action; potential assistance in Strasbourg) against countervailing considerations explicitly identified in the opinion: the parity principle between Northern Ireland and Great Britain; long-standing policy against widespread retrospectivity in social security; the constitutional impropriety of judicially undermining the remedial scheme enacted through section 10 and Schedule 2; that section 6(6) precludes challenge to a failure to make a Remedial Order; the detailed parliamentary process culminating in the Remedial Order; availability of alternative remedies (section 8 damages or Strasbourg); and guiding precedent tending towards judicial restraint where a remedial order has followed a DOI.
Applying the Creednz/Findlay principle, the court concluded that, in the exercise of its discretion and viewing the matter panoramically, the preponderance of relevant considerations weighed against granting the specific remedies sought by either appellant.
Holding and Implications
REMEDIES REFUSED
Holding: The Court exercised its discretion to refuse the remedies sought by both appellants. It concluded that the combined effect of the HRA 1998 remedial scheme, the Remedial Order and the relevant policy and precedent factors precluded granting the relief requested.
Implications: The direct effect is that the Tribunal will determine the two appeals accordingly (i.e., dismissal consistent with the court's reasoning). The court deferred finality to permit the parties to submit a draft final order within 14 days. The court emphasised that its decision was an exercise of discretionary remedial authority under HRA 1998 rather than the creation of a new binding precedent extending beyond the facts and statutory context of these referrals.
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