My Lords, with the leave of the House, I would like to repeat a Statement made earlier in the other place by my honourable friend. The Statement is as follows:
“Mr Speaker, with permission, I would like to make a Statement on widowed parent’s allowance. Widowed parent’s allowance is paid to those families in receipt of child benefit, where one parent’s husband, wife or civil partner died prior to 6 April 2017. It was replaced after this date by bereavement support payments, which are now paid by the Government to families who find themselves in the same unfortunate circumstances. New claimants have no eligibility to widowed parent’s allowance.
Last week the Supreme Court ruled that the primary legislation that governs widowed parent’s allowance is incompatible with the principles of European human rights law, as the benefit precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner. We are in the very earliest stages of carefully considering the full implications of this ruling. Officials at the department are working closely with their counterparts in Northern Ireland to examine the judgment and decide what our next steps should be.
However, as the House will be aware, only Parliament is able to change primary legislation. Lady Hale ruled:
“A declaration of incompatibility does not change the law: it is then for the relevant legislature to decide whether or how it should be changed”.
Therefore, the court’s ruling does not change the current eligibility rules for receiving bereavement benefits.
I would like to remind the House that the question of opening up bereavement benefits to cohabitees was debated and decided against in this place during the passage of the Pensions Act 2014. It was this legislation that introduced bereavement support payments, the successor to widowed parent’s allowance.
It is worth noting that restricting bereavement benefits to claimants who were in a legal union with the deceased has been a consistent feature of bereavement support in order to protect and clarify this entitlement. Other contributory benefits linked to national insurance contributions also contain special rules for claimants in a legal union. A legal union gives the surviving spouse the right to claim state benefits derived from their deceased partner’s national insurance contributions. This principle provides a clear threshold for determining who can be provided for from a deceased person’s NI accumulation, and serves to promote the institutions of marriage and civil partnership.
As I have stated, we are carefully considering the court’s judgment and how the department should proceed in the light of this. When we have looked at all the options, I will come before the House to update Parliament further on this matter”.
My Lords, I thank the Minister for repeating that Statement and for advance sight of it. Last week the Supreme Court ruled that the denial of widowed parent’s allowance to surviving partners of unmarried couples with children is incompatible with the law, in upholding the appeal of Siobhan McLaughlin, who lived with her partner John Adams and their four children for 23 years, until John died in January 2014. John’s national insurance contributions would have entitled Siobhan to WPA had they been married.
In the judgment, the Supreme Court said:
“The financial loss caused to families with children by the death of a parent ... is the same whether or not the parents are married or in a civil partnership”.
The judgment relates to legislation in Northern Ireland, but unmarried couples are not eligible for widowed parent’s allowance anywhere in the UK, so the principle established by the Supreme Court clearly has wider implications for the rest of the UK.
Today’s Statement says that Ministers will think about it and get back to us but would the Minister consider conveying back to the department a sense of urgency about this? She must, I am sure, be aware that bereaved parents are already getting in touch with charities such as the Child Bereavement Network in light of the judgment to ask what will happen to them and whether the situation has changed.
Ministers clearly knew this was coming. It was always a possible outcome of the case but, in any event, back in March 2016, the Work and Pensions Select Committee in another place warned the Government specifically that they could be forced to change their policy as a result of this case. The committee produced a report in 2016 called Support for the Bereaved, which clearly expressed the view that excluding unmarried couples was unjust on the children.
The Government were pressed on this point during the passage of the Pensions Act 2014, which reformed benefits for bereaved people. They abolished widowed parent’s allowance and replaced it with bereavement support payment. That is payable for only 18 months as opposed to widowed parent’s allowance, which was payable until either the children grew up, or the widowed parent remarried or cohabited. When this House debated the regulations that came from that primary legislation on 21 February last year, I asked the Minister to explain the Government’s rationale for excluding unmarried couples. The response was simply to say that they would not extend it to cohabitees. The then Minister, the noble Lord, Lord Henley, cited complexity and said people could always get married if they wished to regularise their position.
Complexity is regularly cited by Ministers, but the DWP routinely judges someone to be cohabiting for the purposes of means-tested benefits on rather less evidence than the presence of four children in the house with parents who have been together for 23 years. Reference is often made anecdotally to toothbrushes, slippers and other evidence of the presence of a relationship. Clearly the process of making a judgment over whether two people are cohabiting is one with which the DWP is familiar and must have the means to do it. Indeed, the right reverend Prelate the Bishop of St Albans, when we were discussing those regulations, on 21 February at col. 10 GC, pointed out that the Armed Forces Pension Scheme successfully uses a definition of “eligible partner” to determine who may receive a pension.
It is also noticeable that the way that people lose widowed parent’s allowance once they have got it is, as I said, because the children grow up, or they get remarried or cohabit—so cohabiting is not enough to get the benefit, but it is enough to lose it.
Those benefit reforms were generally quite controversial because they resulted in money being taken away from families with children. The DWP itself estimated that 75% of bereaved families with children would get less support under the new system than under the old. Ministers have told us repeatedly that the reforms were not about saving money, but the Government’s own impact assessment told us that, although it would cost more for the first two years, in steady state it would save the Treasury £100 million a year. The Select Committee argued that the Government should use those savings to extend the system of bereavement benefits to unmarried couples.
I have some questions for the Minister. I understand that she may not be able to answer them all today, so I would be grateful if she would, if necessary, be willing to write to me if it is easier for her to do that. First, what assessment has the DWP made of the cost of bringing the legislation on eligibility for widowed parent’s allowance in line with the Supreme Court judgment across the UK? Secondly, does the department believe that the primary or secondary legislation governing the new bereavement support payments is compatible with the principles of human rights law? Thirdly, what is the current estimate of how many of those savings scored against the bereavement reforms will in fact be realised? Finally, will the Government now review bereavement provision in the light of both this judgment and the concern expressed around the House repeatedly about the impact of the reforms of bereavement benefits, especially on parents of young children? To be a bereaved parent trying to support and raise your children while dealing with their grief and your own is about as tough as it gets. Therefore, I urge the Government to act quickly and to do something to give people in that position both comfort and certainty.
My Lords, I whole- heartedly support the suggestion from the noble Baroness, Lady Sherlock, that we should take the opportunity that has been presented to us by this judgment to look again at bereavement benefits more generally, and I hope that the Minister will undertake to engage constructively in the way that the department has done on many issues in the past in this regard. Times have moved on. The introduction of universal credit changes things to the extent that the Government and the DWP accept that cohabiting couples are perfectly capable of making joint applications for that credit, and that is a change from the circumstances that applied under the national insurance contribution regime of previous years.
Can the Minister confirm that the Government will act urgently? I understand that the department cannot make payments to anyone until the law is changed and makes it possible to do so, but she must understand that there will be hundreds, if not thousands, of families waiting for a signal from the Government about how long it will take for them to decide how they are going to dispose of this legal judgment.
First, I say to the noble Baroness, Lady Sherlock, that I will make sure that the department knows—as it already does—of the urgency of dealing with this issue properly. The questions that she has asked me in relation to estimates, assessments and so on will be covered comprehensively in our assessment of the ruling. I am sure that she and the noble Lord will understand that we are considering this carefully, and we will come back to the House as soon as we can. Rather than give quick responses, we want to deal with this matter properly. We understand that bereavement is traumatic and awful for people. In the early days of a bereavement, people’s emotions are all over the place and they wonder where their life is going. That is one reason that we are putting money into those early stages—to help people through that—and once they have made a bit of a journey, there are other benefits and other support and help that we can give them. I make no apology for saying that one thing that helps people is looking for work so that they can be financially independent, but we are supporting them in the process.
Noble Lords will know of my previous job at Tomorrow’s People, where we encountered people who had lost somebody very dear to them. They were despondent and depressed, and they did not know what would happen next. It took time and a lot of support but we were able to nurture them so that they could have a role in society and start to realise their destiny. That is what we want for everybody.
All the points that the noble Lord, Lord Kirkwood, has raised will be concluded in the assessment of the ruling. There is definitely a sense of urgency and, as ever, we will always engage where appropriate.
My Lords, I commend my noble friend on the kindness and understanding she has shown in her responses so far. I echo the concerns expressed by the noble Baroness, Lady Sherlock, and the noble Lord, Lord Kirkwood. Might I suggest something that could be a compromise way forward? I know that my noble friend, and the Government, care deeply about bereaved families and the plight of bereaved children. There is clearly a difficulty felt across the House, first, that the bereavement allowance is not necessarily paid—or rather, not paid at all—to cohabiting couples, even if they are of long standing and have children together; and, secondly, that the payments will now be running out after just 18 months. Might we consider introducing a payment focused on the bereaved child rather than the bereaved parent, so that the national insurance status or marital status of the parent is not necessarily so relevant, and which might kick in after the bereavement payment has been extinguished? We could then continue the support beyond 18 months, which in many cases is not sufficient.
I thank my noble friend for her thoughts on this and for trying to come up with solutions, which is always helpful. I will be happy to ensure that her suggestion is shown to Ministers. I cannot promise anything, though I wish I could. I am going to give the homework back to my noble friend and ask her to prepare a paper, to make it easier for me to do that.
My Lords, we understand that this is not altogether straightforward: there are complexities within it. However, we can be clear on one point, raised by my noble friend Lady Sherlock. Though the implications of the judgment must be carefully considered, do the Government at least accept that the current position is incompatible with human rights legislation? That seems a separate and distinct issue, which the Government should have a view on now.
The noble Lord, Lord McKenzie, asks an understandable question. All I can promise him is that that is being considered in the consideration of the ruling. I am sorry that I cannot say more; I have no desire to annoy him or put him off, but that is the accurate position. I am sure he will understand that.