DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This appeal, brought with leave of a tribunal chairman, fails.  The decision of the Appeal Tribunal on 15 2 02 was not erroneous in point of law, as explained below. The appellant was not entitled to bereavement benefit on the death of his partner, as he had not been married to her and could not be presumed to have been so married.  
 
2.	There is no doubt on the evidence that the appellant and his partner had lived together in a stable union for 20 years, and were bringing up their three children together. But they had never married, although his partner had taken his name.  They had discussed marriage when she first became pregnant, but had decided not to risk what they had seen happening to other couples - that, having lived together happily, the relationship broke up once they married.  People treated them as a couple, as often happens; their MP said she regarded them as such and never had occasion to ask whether they were married or not.  But their respective parents knew they were not married.  Their children knew they were not married.  The appellant had given up work to care for his partner, and did so devotedly until she tragically died of multiple sclerosis at a young age, leaving him to finish bringing up the children.  This is as sad a human story as one might find.  But there can be no successful claim for bereavement benefits where a couple have deliberately chosen not to marry.    

3.	Indeed, until last year the appellant could not have claimed even if they had been married.  The law was changed from 9 4 01 so as to provide for such a claim by a widower as well as a widow, but the new provisions (such as s39A) inserted into the Social Security Contributions and Benefits Act 1992 speak of a person’s “spouse”, not “partner” as used in many other contexts in social security law where being married or not makes no difference. The dictionary definition of “spouse” is “husband or wife”.  And s39A(1)(b) refers to a man whose “wife” has died.  The appellant’s claim was refused, and the refusal was upheld by the tribunal on appeal.   

4.	It had been argued by the appellant’s then solicitors that article 8 of the European Convention on Human Rights (ECHR), introduced into UK domestic law by the Human Rights Act 1998, required recognition of the couple’s union in the interests of respect for family life.  The failure to marry was a matter of “personal beliefs”.  It was argued that the appellant suffered impermissible discrimination under article 14 in comparison with the survivor of a couple who had been able to take advantage of the Scottish custom of marriage by cohabitation by habit and repute, or with the widow in CAO v Bath, who had gone through what both parties believed was a valid marriage ceremony, which was indeed valid under their own religion but not under UK civil law.  The example of parties to a potentially polygamous marriage being entitled to bereavement benefits so long as the marriage was not actually polygamous at the date of death was also invoked.

5.	But the tribunal, while fully accepting the appellant’s evidence of the length and loving nature of his relationship with his partner and the genuineness and strength of his feelings, and carefully considering the submission from his then solicitors, found itself unable to allow the appeal, for the reasons set out in the tribunal submissions.  

6.	Different solicitors on the appeal to me reiterated the article 8 submissions, adding that the couple’s “right” to have a relationship without the need for a “formal” marriage ceremony was “eroded” by the Benefits Agency decision.  Leave to appeal was granted by the chairman.
	
7.	I directed a full submission on the points made.  The Secretary of State’s officer provided such a submission, supported by authority, not least that of Shackell v UK, a decision of the European Court of Human Rights in 2000, where the court rejected a claim by a woman with two children whose father, her unmarried partner, had died.  In that case the court held that the ECHR article to be invoked was article 1 of protocol 1, based on the deceased’s national insurance contributions, and that it did not need to consider article 8 as such.  But in connection with article 14 it observed that although unions outside marriage may be gaining more social acceptance, marriage is still widely accepted as conferring a particular status on those who enter into it, and is singled out for special treatment under article 12, so that the applicant’s status was not comparable with that of a widow.  Further, a difference in treatment is discriminatory only if there is no objective and reasonable justification for it, ie it does not pursue a legitimate aim or there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.  States enjoy a margin of appreciation in assessing the extent to which differences in otherwise similar situations justify a different treatment in law.  The promotion of marriage by way of limited benefits for survivors did not exceed the UK’s margin of appreciation.

8.	The officer distinguished CAO v Bath because in that case there clearly had been a ceremony which represented a genuine attempt to marry.  The Scottish cases require there to have been tacit consent to marry.  In either case there is a presumption arising from long cohabitation, but it can be rebutted by other evidence.  In the present case there was a clear and considered decision not to marry, which was known to close relatives, including the children, whatever outsiders may have thought.  The government in November 2001 (after the death of the appellant’s partner) began a review on whether to establish a scheme of civil partnerships outside marriage, but this is far from reaching a conclusion, so there is no current commitment to legislative action and there is no guarantee that any benefits which might be accorded would be the same as those for married people

9.	The appellant’s solicitors had no comment to make in response to these submissions.

10.	I am satisfied that, although it was perfectly proper for the appellant to try to invoke the Human Rights Act, his appeal must fail.  He and his partner made a deliberate decision, for pragmatic reasons which seemed good to them and may very well have been good, but which do not, in my view, amount to “personal beliefs”, not to marry.  There is no suggestion that any ceremony (not merely any “formal” ceremony, a term used by both solicitors) ever took place.  Quite the reverse.  There was long cohabitation, but any presumption arising from this is displaced by the evidence that there was no marriage.  The MP’s letter gave clear evidence that she regarded the couple as a couple but that she had had no need, in the context in which she met them, to inquire as to their actual status.  Had she done so she could hardly, as a holder of office in the government which enacted the changes to the 1992 Act in favour of widowers but using language which confined them to those who had been married, have asserted that the absence of a ceremony was immaterial.

11.	I accept the Secretary of State’s officer’s submission, save in one respect.  The argument that because one partner was dead there could be no relevant “family” under article 8 is no longer good law, but I do not see this as a ground for formally setting aside the tribunal’s decision only to substitute my own to the same effect.  The tribunal accepted the submissions as a whole, including those based on the wording of the 1992 Act amendments, and it was entitled to do so. 

12.	I add that potentially polygamous marriages, or indeed those that have in the past been polygamous, are recognised as a matter of private international law only, persons domiciled in the UK lacking the capacity to contract such marriages; but it is essential to the receipt of benefit that the marriage must not be actually polygamous at the date of the relevant death.  And they must still have been marriages.  In the present case, there was no marriage.

13.	This is a sad outcome for the appellant, but it is in accordance with the law as enacted by Parliament, after the coming into effect of the Human Rights Act 1998.

				(signed on original)	Christine Fellner
								Commissioner

								20 November 2002