After more than a decade of campaigning, a recent win for the Childhood Bereavement Network and many partner organisations has seen eligibility for bereavement benefits extended, meaning cohabiting parents and their children can now get financial support.
Parents with dependent children are entitled to bereavement payments worth almost £10,000 if their partner dies before the children grow up. These payments, made over 18 months, give families a bit of breathing space as they adjust to life without their mum or dad.
Entitlement is built up through the National Insurance (NI) contributions of the partner who died, in the same way that these contributions build up entitlement to other social insurance benefits such as the State Pension and certain unemployment allowances.
People make NI contributions at the same rate, whatever their relationship status. However, until recently, Bereavement Support Payment was only paid when the parents had been married or in a civil partnership. It was denied to families where the parents had been cohabiting without being married. That meant that around 1,800 grieving families a year faced the terrible double blow of one parent dying and then being denied state support. This injustice took on a new dimension during the pandemic, when so many weddings were postponed.
The impact of being denied these benefits is devastating, layering anxiety and shame on top of grief. One mum told the Childhood Bereavement Network:
“Holding down a full-time job whilst looking after a young child with very little support is taking a toll on my mental health, leaving little time for grieving, which then impacts on my child’s happiness. I had to sell my house as a result. I feel naïve as I didn’t realise that not being married meant that my child was treated as if they were lesser than children of married parents. This guilt is difficult to handle.”
Now, thanks to a dedicated campaign by many organisations and individuals, cohabiting couples are entitled to the benefit. From 9 February 2023, under a Remedial Order, newly bereaved families have been able to claim. Very unusually, the government is also making retrospective payments back to August 2018 when the Supreme Court found the eligibility rules to be incompatible with Human Rights legislation.
Getting to this point has involved the full playbook of public campaigning, strategic litigation, parliamentary lobbying and working with officials. Since 2011, the Childhood Bereavement Network has co-ordinated activity to try to influence the government to make this change, through proposing amendments to legislation, meeting with ministers and officials, and gathering and analysing evidence for the Work and Pensions Select Committee and individual MPs including Sir Ed Davey and Stella Creasy.
Key to all of this has been the tireless work of parent campaigners, particularly Georgia Elms and Vicky Anning at WAY Widowed and Young, many of whose members have been affected by this injustice.
Initially, it was hoped that parliamentary processes would extend eligibility. In 2011 the government consulted on Bereavement Benefits for the 21st Century, making proposals to replace old-style benefits with Bereavement Support Payment (BSP), changes that were included in the Pensions Act 2014 and brought into force in April 2017. The title of the consultation suggested that the benefits would be modernised, but to campaigners’ bemusement, the government specifically ruled out of scope any possible extension to cohabiting couples.
At that point, attention switched to the courts and the case of In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48. McLaughlin, from County Antrim, had been denied Widowed Parent’s Allowance when her partner of 23 years, and father of her four children, died in 2014. She appealed the decision, represented by Laura Banks of Francis Hanna & Co., and initially won in the High Court, but this was overturned in the Court of Appeal. The Child Poverty Action Group intervened in her appeal to the Supreme Court, as did the National Children’s Bureau (Childhood Bereavement Network), with pro bono support from Alex Rook (then at Irwin Mitchell), and Steven Broach of Monckton Chambers. There, a majority of four to one found in her favour, with Lady Hale giving the lead judgment:
“The allowance exists because of the responsibilities of the deceased and the survivor towards their children. Those responsibilities are the same whether or not they are married to or in a civil partnership with one another. The purpose of the allowance is to diminish the financial loss caused to families with children by the death of a parent. That loss is the same whether or not the parents are married to or in a civil partnership with one another.”
The court made a declaration of incompatibility, which paved the way for change. However, Siobhan’s victory was not the end of the story. Because the whole structure of bereavement benefits had changed in 2017, other parents had to come forward with cases under the new BSP regime. Kevin Simpson and James Jackson, represented by barristers instructed by the Child Poverty Action Group, were successful in the High Court in February 2020 in R (Jackson & ors) v SSWP  EWHC 183. The onus was then on government to make a Remedial Order to correct the incompatibility the courts had found.
Sir Ed Davey used his Prime Minister’s Question later that month to quiz the government on its intentions, and the Prime Minister described the situation as an “injustice”. Since then, campaigners kept up the pressure on government to bring forward the change. A petition set up by mother Laura Rudd, whose partner died suddenly in February 2020, quickly gathered over 100,000 signatures from people calling for the rules to be amended.
Many organisations have backed the campaign, signing joint letters, endorsing briefings and sharing ideas and insights to help design the changes. As will be clear, a huge number of people have been instrumental to this change. Twitter followers can read the thank-yous there.
However, the work doesn’t stop here. While some people have had a straightforward experience of making a retrospective claim since February, and have already received their payment, others (particularly those bereaved longer ago) have struggled to get the information they need about what implications a claim might have on their wider tax and benefits entitlement. We continue to press DWP to improve their communications with potential claimants before, during and after they put in a claim. We also have much work to do to fund the 21,000 families who could be in line for a back payment.
We are also sharing our insights with those campaigning for justice for bereaved people who are still ineligible, including surviving cohabiting partners without children. It was the presence of children in the family that won the cases described above: notably, Siobhan McLaughlin was unsuccessful in appealing the denial of the benefit that would be paid regardless of children. Cohabiting partners without children are still excluded from support, despite their partners making the same NI contributions as married or civilly partnered couples. Those whose spouse or partner was too sick or disabled to build up the necessary NI contributions are also denied these benefits, and the government has recently appealed Mr Justice Kerr’s ruling in September 2022 that this, too, is a breach of human rights.
It’s crucial that this lifeline support is extended to all those who should be protected at a time of great stress and grief.
For more information, visit www.childhoodbereavementnetwork.org.uk/cohabiting
Alison is a director of the Childhood Bereavement Network and co-ordinator at the National Bereavement Alliance