UK Social Security and Child Support Commissioners' Decisions

[2006] UKSSCSC CAF_52_2006 (20 October 2006)

DECISION OF THE PENSIONS APPEAL COMMISSIONER

1. The claimant's appeal to the Commissioner is disallowed. The decision of the London pensions appeal tribunal dated 10 November 2005 is not erroneous in point of law, for the reasons given below, and therefore stands.
2. The issue in this case is whether a person in a marriage-like relationship with a former member of the armed forces whose death is due to service is entitled to a pension under the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 although she does not meet the conditions of Article 29 (pensions to widows and widowers) or Article 30 (pensions to certain unmarried dependants who lived as spouses). The argument for entitlement is based on interpreting those provisions so as not to contravene the European Convention on Human Rights (ECHR) and in particular Article 14 on discrimination.

The background

3. Lieutenant-Commander K served in the Royal Navy from 1 May 1952 to 22 July 1988. He was aged 16 at the date of entry, having been born on 27 January 1936. In 1976 he began a relationship with the claimant in the present case. She described the circumstances as follows in a summary sent to the Veterans Agency:

"The relationship began in February 1976. From 1985 onwards it became an unbroken and true partnership and we were treated by all family and friends as though married.

From 1985 [K] provided considerable financial support. After September 2001 I was not working and lived as a dependant with him at our home in Hitchin where I cared for him and nursed him during the final stages of his cancer."

They never married and had no children. After leaving service, K was discovered to be suffering from mesothelioma. This was accepted as attributable to exposure to asbestos in service and he was awarded a disablement pension under the Service Pensions Order from some date in 2002 with an assessment of 100% disablement. He died on 4 January 2004.

4. A particularly unfortunate aspect of the case is the following, as the claimant put it in a statement dated 3 June 2005:

"On 1st December 2003 I telephoned the [Veterans Agency] Welfare Office in High Wycombe to ascertain the legal position with regard to pensions etc as [K] was very seriously ill and had been admitted to the local hospice. The Welfare Officer referred the matter to Norcross for a ruling on the case and acknowledged this immediately in an undated letter, a copy of which is enclosed [no copy is in the papers before the Commissioner].

[K] returned home on 10th December 2003 and for a short while was slightly better. He then deteriorated very rapidly over Christmas and was re-admitted to the hospice on 29th December.

I received a reply to my query in the Veterans Agency letter dated 20th January 2004, the day after his funeral [the letter, at page 5, says that it is in reply to a query about eligibility to unmarried dependant's pension and simply sets out the conditions under Article 30 of the Service Pensions Order].

It took the Veterans Agency almost seven weeks to provide nothing more than the statutory information, when it had been made quite clear that time was of the essence. This is so far outside their standards of performance that it constitutes a breach of their duty of care to [K] and myself. Had the information been provided expeditiously, it would have been possible for us to marry."

5. The claimant submitted a claim on the form provided by the Veterans Agency, a claim form for a widow's pension adapted by alterations in pen for an unmarried dependant's pension. The claim was refused on 29 April 2004 on the grounds that she was not within the definition of an "unmarried dependant living as a spouse" and she did not have in her charge a child of the deceased service member. There was no dispute that K's death was due to service. It was that decision with which the pensions appeal tribunal (PAT) of 10 November 2005 was concerned.

The relevant provisions of the Service Pensions Order

6. I set out the provisions as in force at the date of claim, before the amendments in 2005 to take account of the creation of civil partnerships. Article 30(1) and (2) provides:

"(1) An unmarried dependant who lived as a spouse of a member of the armed forces whose death is due to service may be awarded a pension in accordance with the following provisions of this article.

(2) Where such an unmarried dependant who lived as a spouse has in her charge a child of the member and is in receipt of an allowance awarded in respect of that child under the following provisions of this Part of this Order, a pension may, subject to the provisions of paragraph (3), be paid to her until she ceases to have that child in her charge or to be in receipt of such allowance."

The remainder of Article 30 does not contain any other category of qualification except for a transitional award on the death of a child. Article 29 makes a pension available to the widow or widower of a service member whose death was due to service.

7. Paragraph 51A of Schedule 4 to the Service Pensions Order defines "dependant living as a spouse", unless the context otherwise requires (Article 1(2)), as:

"(a) in relation to a member of the armed forces whose disablement is due to service before the commencement of the 1914 World War or after 30th September 1921, a person of the opposite sex who is not married to, but who is wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service and continuing, where the member is disabled, up to the date of any award under this Order in respect of his disablement and, where the award is reviewed, up to the date of review or, where the member is dead, up to the date of his death;

...

(and the expression "dependant who lived as a spouse" shall be construed accordingly)."

The appeal to the PAT

8. The claimant's appeal relied in particular on the decision of the PAT in the case of Hopkins, which was overturned by Newman J on appeal (Secretary of State for Defence v Hopkins [2004] EWHC 299 (Admin)). The PAT there had found that the requirement in the definition of "dependant living as a spouse" for the relationship to have begun at least six months before the beginning of service (which I shall from now on call the "pre-service dependency condition") was absurd, so that the definition should be construed to cover permanent and bona fide relationships that had endured for a period reasonable in the circumstances. Alternatively, there was discrimination between married and unmarried couples that contravened Article 14 of the ECHR. Newman J held that the definition could not be interpreted as the PAT had done and that for various reasons (examined in detail below) there was no contravention of the ECHR. The claimant sought to distinguish Hopkins on a number of factual bases: for instance, that a surviving dependant's pension was in lieu of compensation that would have been paid for negligent exposure to asbestos but for the Crown Proceedings Act 1947, not just an additional allowance to an existing pension; that the six-month rule meant that K, because of his age at entry into service, was totally excluded from ever having a partner who could qualify as an unmarried dependant living as a spouse; and that her relationship with K began while he was in service, not afterwards as in Hopkins, and had lasted almost twice as long. She also argued that Newman J was wrong to say that war pensions were not contributory and so possessions within Article 1 of Protocol 1 to the ECHR, by reference to the giving up of compensation rights and the nature of service under the Crown, and wrong not to treat the Service Pensions Order as secondary legislation. Finally, she relied on the decision of the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30 [2004] 2 AC 557 as showing that the definition was out of date with current social mores and public policy. If same-sex partners were to have the same status as a married couple in succeeding to a statutory tenancy, she and K should have that status for purposes of the Service Pensions Order.
9. The PAT dismissed the claimant's appeal. In the chairman's statement of reasons it was said:

"We find the facts of this case not to be so dissimilar from the case of Hopkins ... to enable it to be distinguished. We do not accept the Appellant's evidence that a class of servicemen such as [K] are forever excluded from benefits by virtue of his age on enlistment, as, though unlikely, he could have married at that time by parental consent. However, even if we accepted that [K] only became of full capacity such as to enable him to marry freely at age 21, the age of majority at that time, the fact remains that the relationship the subject of this Appeal did not commence until 1976, continuous only from 1985 when [K] was 49 years of age.

With regard to the Appellant's submissions that the decision of the Secretary of State breaches Articles 6, 8 and 14 as well as Protocol 1 of the European Convention on Human Rights, we do not agree. We find no incompatibility between the statutory framework as examined at length in Secretary of State v Hopkins and ECHR."

The appeal to the Commissioner

10. The claimant now appeals to the Commissioner with the leave of the President of PATs. The appeal was not supported in the comprehensive written submission on behalf of the Secretary of State dated 23 March 2006. The claimant replied with an equally comprehensive, and in some ways more up-to-date legally, written submission dated 20 April 2006. Mr Commissioner Rowland granted the claimant's request for an oral hearing of her appeal. The case was then passed to me for decision.
11. The oral hearing was on 21 June 2006. The claimant attended. The Secretary of State was represented by Mr Andrew Henshaw of counsel, instructed by the Treasury Solicitor. I am grateful to both for clear and robust submissions at the hearing, and for subsequent written submissions. I hope that the claimant will not feel patronised if I say that the quality of her preparation and her focus on the central issues of law would have done credit to many professionally qualified representatives.

Did the PAT err in law?

12. The claimant accepted that, applying the ordinary and natural meaning of the words of the Service Pensions Order, she did not qualify. She also rightly accepted that the PAT was bound by decision of Newman J in Secretary of State for Defence v Hopkins in so far as he held that the definition of "dependant living as a spouse" in the context the conditions of entitlement to a dependant's allowance under Article 18(5) of the Service Pensions Order did not contravene Article 14 of the ECHR in conjunction with either Article 8 of or Article 1 of Protocol 1. However, she wished to pursue her arguments to the contrary before me. After a short adjournment, Mr Henshaw submitted that the principles set out in Commissioner's decision R(IS) 15/99 should apply, so that Commissioners were bound on questions of legal principle by decisions of the nominated judges of the High Court to the same extent as they are bound by previous decisions of individual Commissioners. That position was rightly maintained in the written submission of 21 July 2006, by reference to the position set out in paragraph 21 of Tribunal of Commissioners' decision R(I) 12/75. I have explained the result in more detail in paragraphs 18 to 21 of decision CAF/3326/2005. Thus, in the interests of comity and to secure certainty, I should follow the decision in Hopkins, unless satisfied that it embodied some error of law or (to use Denning J's words in Minister of Pensions v Higham [1948] 2 KB 153, there is strong reason to the contrary). Further developments in the domestic and ECtHR case-law could be capable of providing a reason not to follow the decision, as would many other factors. Thus it is right for me to consider the claimant's carefully argued submissions on the effect of the Human Rights Act 1998.
13. It follows from the obligation of the PAT to follow the principles of law decided in Hopkins that it could come to no other conclusion than that the claimant was not entitled to a pension as an unmarried dependant who had been living as a spouse. Although there were clearly differences between the circumstances of Hopkins and of the present case, the decisive legal matter in both sets of circumstances was the proper interpretation of the definition of dependant living as a spouse in the Service Pensions Order. The PAT perhaps did not explain that very well, or why it rejected the claimant's submissions on the ECHR. But as the essence was that it followed and applied Hopkins, those failings might not be regarded as material to the adequacy of the reasons. I think that the PAT should have said expressly what it made of the claimant's submission that she should be treated as a widow, not just as an unmarried dependant who had been living as a spouse. Her claim could properly have been taken as including a claim for a pension on that basis, as it was made on the form supplied to her by the Veterans Agency, adapted from a widow's form with unmarried dependant's pension written in. But if I conclude that the claim for widow's pension could not succeed, it would be an empty technicality to set the PAT's decision aside for inadequacy of reasons and to substitute a decision to the same effect.
14. Thus I concentrate below, as the parties did in their submissions, on the substance of the claimant's entitlements. If I were to conclude that the true legal position was not, in some way relevant to the outcome in the present case, as set out in Hopkins, I would then set the PAT's decision aside as erroneous in point of law even though as things stood as at 10 November 2005 the PAT was bound to follow and apply the principles of law necessary to the decision in Hopkins. That may seem paradoxical and unfair to the PAT, but it follows from the essential nature of an appeal on a point of law.

The claimant's two bases for discrimination

15. The claimant put forward two alternative bases for discrimination that she said was contrary to Article 14 of the ECHR. The first was between widows/widowers and the survivors of marriage-like relationships. She relied on the difference of treatment in Articles 29 and 30 of the Service Pensions Order between the survivor of a marriage with a service member whose death was due to service, who would be able to receive a pension regardless of the date of the marriage, and the survivor of a marriage-like relationship with the service member, who could only receive a pension if within the highly restrictive definition of "dependant who lived as a spouse" in paragraph 51A of Schedule 4. The second basis was the difference in treatment between those survivors who had been in a marriage-like relationship with the service member at the date of death who could also get within the terms of the definition of "dependant who lived as a spouse" and those who could not get within that definition. In Hopkins reliance on discrimination between married and unmarried couples was not pursued before Newman J, although it had formed part of the reasoning of the PAT in that case. However, it is right at least to re-examine the arguments.

Remedies

16. I start with an issue that is relevant to both parts of the claimant's submissions. The Service Pensions Order is an Order in Council made by Her Majesty the Queen in the exercise of the Royal prerogative. Section 12 of the Social Security (Miscellaneous Provisions) Act 1977 allowed Her Majesty's powers to be exercised through one order, rather than separate orders for the three services, and provided for the order to be a statutory instrument and to be laid before Parliament. In section 21(1) of the Human Rights Act "primary legislation" is defined to include any Order in Council made in exercise of Her Majesty's Royal Prerogative (paragraph (f)(i) of the definition). The Service Pensions Order is accordingly primary legislation for the purposes of the Human Rights Act, as decided in Hopkins. The significance of that is that the duty on public authorities, including courts and tribunals, not to act in a way incompatible with a Convention right (section 6(1)) does not apply if (section 6(2)):

"(a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

17. Thus, even if I concluded that some provision of the Service Pensions Order was incompatible with the ECHR, the reliance of the PAT on that provision could not be found to be an error of law just because of that incompatibility. And a Commissioner, not being a court as defined in section 4 of the Human Rights Act, cannot make a declaration of incompatibility under that section. The only remedy available at the level of the Commissioner, which is of course the primary remedy, flows from the duty in section 3(1) to read and give effect to legislation in a way which is compatible with Convention rights, so far as it is possible to do so.
18. It was common ground that the general approach to be adopted is that set out by the House of Lords in Ghaidan v Godin-Mendoza. Section 3 of the Human Rights Act may require legislation to bear a meaning which departs from the unambiguous meaning that it would otherwise bear. Their Lordships used a number of different formulations of the limits imposed on that process by the "so far as it is possible" condition, but I think that for present purposes the essence appears in the speech of Lord Nicholls at [32] and [33]:

"[32] From this the conclusion which seems unescapable is that the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is `possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation.

[33] Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, `go with the grain of the legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation."

Discrimination between widows/widowers and survivors of marriage-like relationships

19. The claimant of course worked through in her submissions all the necessary stages towards a decision in her favour under the Human Rights Act. I intend no disrespect to those submissions by not dealing with every stage. Instead I pick out the main points where I have concluded that her case fails.
20. Starting at the far end of that process, if this discrimination were found to be incompatible with Article 14 of the ECHR, would it be possible to interpret Article 29 so as to allow the survivors of marriage-like relationships, as well as of legally recognised marriages, to qualify for a pension on the death of the service member? It follows from Ghaidan that it does not matter how many words would have to be altered in Article 29 to produce that result. And it would clearly be perfectly possible to have a scheme very similar to that in the Service Pensions Order that gave a pension to the survivor of a marriage-like relationship in the same way as to the survivor of a marriage, without affecting the fundamental nature of the scheme as a whole. However, the focus must be on the context of the particular legislative provision in which the discrimination is said to be. That requires examination of the Part of the Service Pensions Order on awards in respect of death and, in particular, Articles 29 and 30 in combination. Since Article 30 expressly gives an entitlement to a particular category of survivors of marriage-like relationships, even though a very restricted category, it would not be compatible with the underlying thrust or fundamental nature of that particular provision to put all survivors of marriage-like relationships on an equal footing with survivors of marriages. It has been held that the words like "widow" and "widower" have a plain meaning that cannot possibly be read otherwise than as restricted to the survivors of a legally recognised marriage (Commissioners' decisions CG/1259/2002 and R(G) 1/04). Even applying the more far-reaching test in Ghaidan, it is not possible to interpret Article 29 in the way suggested at the beginning of this paragraph.
21. The claimant has submitted that the decision on the factual and legal circumstances in Ghaidan shows that a limited extension in a legislative provision of entitlement beyond married couples does not exclude a conclusion that it is possible under section 3 of the Human Rights Act to interpret the provision as giving entitlement to a wider group as if they had been members of a married couple. The House of Lords was concerned there with paragraph 2 of Schedule 1 to the Rent Act 1977, under which (sub-paragraph (1)) the surviving spouse of a statutory tenant took over the tenancy on the tenant's death and (sub-paragraph (2)) a person who was living with the tenant as his or her wife or husband was to be treated as the spouse of the tenant. It had been held, before the advent of the Human Rights Act, that paragraph 2(2) could not be interpreted so as to cover a homosexual couple rather than a heterosexual couple. The House of Lords held that this difference in treatment constituted unjustified discrimination under Article 14 of the ECHR in conjunction with Article 8, and that it was possible under section 3 of the Act to interpret the Rent Act provision so that the security of tenure was extended to the survivors of homosexual couples living together in a close and stable, or marriage-like, relationship. But that does not help the claimant here. The difference in treatment that was found to be discriminatory in Ghaidan, and which had to be remedied, was not between the survivors of married couples and the survivors of homosexual marriage-like relationships. It was between the survivors of heterosexual marriage-like relationships and the survivors of homosexual marriage-like relationships. The fact that the House of Lords found that the unambiguous words of the Rent Act provision, ie sub-paragraph (2), could be interpreted so as to remove that discrimination without undermining the underlying thrust or fundamental nature of the legislation does not help the claimant to overcome the impossibility of interpreting the unambiguous words of Article 29 of the Service Pensions Order as if the survivor of a marriage-like relationship were the survivor of a married couple.
22. There is another fundamental obstacle in the way of success for the claimant in this part of her case. That is the existence of case-law, both in the ECtHR and in the United Kingdom, deciding that the position of the survivor of a marriage-like relationship is not comparable with that of the survivor of a marriage. As there can only be discrimination within Article 14 of the ECHR between groups that are in analogous or not relevantly different circumstances, a conclusion against the claimant on this point would make it unnecessary to consider any of the other points made by the claimant on this part of her case.
23. The leading ECtHR case is the decision in Shackell v United Kingdom, 27 April 2000 (application no 45851/99), that a claim by the survivor of an unmarried couple to be entitled to widow's benefit under the Social Security Contributions and Benefits Act 1992 was manifestly ill-founded and not admissible. The ECtHR reminded itself that the existing authority that the circumstances were not analogous was 14 years old and continued:

"The Court accepts that there may well now be an increased social acceptance of stable personal relationships outside the traditional notion of marriage. However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter it. The situation of the applicant is therefore not comparable to that of a widow."

The Court also said, in relation to objective and reasonable justification if there had been discrimination, that the promotion of marriage, by way of limited benefits for surviving spouses, could not be said to exceed the margin of appreciation afforded to the state.

24. In decision CG/1259/2002, dated 12 June 2003, Mr Commissioner Lloyd-Davies, after an oral hearing with full argument, referred to those statements of principle and said:

"I recognise that the Convention is a living document and its interpretation may change over the years: however Shackell is such a recent decision that there are no possible grounds on which I would be entitled not to follow it."

Thus he dismissed the claimant's appeal against the refusal of entitlement to widow's benefits on the death of her long-term partner, to whom she had never been married. Then in reported decision R(G) 1/04, dated 10 March 2004, Mr Commissioner Howell QC indicated that he would have rejected the claimant's Human Rights Act arguments in a similar case for the same reasons. That was strictly not necessary to his decision, as he found that the Act was not applicable as the decision under appeal was made before it came into force. However, R(G) 1/04 is unlikely to have been reported if a majority of the Commissioners had not thought that both elements of the decision were correct in law.

25. In the face of two such decisions there would normally be no question of doing anything other than following and applying them in the present case, where the essential issue is the same. However, the claimant argued with great tenacity that attitudes had moved on, so that she should now be regarded as in a comparable position to the survivor of a married couple. She submitted that the two Commissioners' decisions based themselves on Shackell, and thereby on the position in 2000, if not on the position 14 years before. She suggested, I think, that instead of reviewing the baggage of past decisions (with an in-built reluctance in the law to acknowledge change) the comparisons should be looked at directly in today's circumstances.
26. The claimant also relied on the judgment of the ECtHR in PM v United Kingdom (application no 6638/03), 19 July 2005, as showing that, especially where a relationship had ended, relevant similarities had been accepted between married and unmarried couples. PM's complaint was that maintenance payments that he made for his daughter under a deed of separation from the mother, who he had never married, were not eligible for income tax relief when they would have been eligible if he and the mother had been married. The Court held that there had been a violation of Article 14 of the ECHR, despite the UK's reliance on Shackell. In paragraph 27 it said:

"The Court notes the Government's arguments that this case is not about paternity/maternity but the married status of the parents. It is true that any person, not married to the mother of the child concerned, would not qualify for tax deductions for maintenance payments made. That said however, it is nonetheless the case that the applicant may claim to be treated differently as an unmarried father than a married father, though both are parents of the child to be maintained and under obligations to pay maintenance. This is not a situation where the applicant seeks to compare himself to a couple living in a subsisting marriage (see, for example, Lindsay v United Kingdom [decision 11 November 1986, application no 11089/84], where married and unmarried couples, taxed differently, were not found to be in a comparable position], but one where the married father has separated or divorced and is also living apart from the child of the family. Other persons, not parents, are not covered by the child support provisions and are generally in a different situation. This applicant differs from a married father only as regards the issue of marital status and may, for the purposes of this application, claim to be in a relevantly similar situation."

27. I agree with the claimant to the extent that either a shift in the social and legal context or some development in the ECtHR case-law could be capable of constituting a good reason for not following and applying CG/1259/2002 and R(G) 1/04. I am not constrained when considering decisions of individual Commissioners by the principles about the following of binding English authorities on human rights questions laid down by Lord Bingham in Lambeth London Borough Council v Kay [2006] UKHL 10 [2006] 4 All ER 128, at [40] to [45] (see further below). However, I have concluded that neither is in fact a good reason in all the circumstances. To start with the decision in PM, it seems to me that the crucial matter there was PM's legal relationship with his daughter, and in particular his legal obligation to maintain her. The ECtHR effectively rejected the United Kingdom's argument that the case was about the married status of the parents rather than paternity/maternity. From that perspective, the conclusion that PM was in a relevantly similar situation to a father who had separated from a wife is not difficult. I can see why the claimant would seize on the reason given for distinguishing Lindsay (the earlier case referred to in Shackell), as a claim for a widow's pension does not involve a subsisting relationship. But the crucial legal relationship involved in such a claim, the relationship giving rise to the entitlement in dispute, is that between the deceased and the surviving spouse. That makes a fundamental difference to the relevance of the status as married or unmarried in the respective situations. I conclude that one cannot read across from the decision in PM any inroad into the freedom given to states to treat survivors of married and unmarried couples differently in relation to entitlement to widow's benefits and pensions. A possible and plausible reason for the ECtHR's failure to mention Shackell in the passage from PM quoted above is that it did not consider that it would be affected by its decision. Nor do I accept the claimant's submission that the manifest purpose of the Service Pensions Order to provide special treatment for disabled ex-military personnel means that a different result should be reached. Acknowledging that general purpose does not impinge on the freedom of the state to define the limits of that special treatment.
28. I do not find the social and legal context significantly different from that identified in Shackell and in CG/1259/2002. Using those pretty recent decisions as a reference point for comparison does not in my view involve taking an inevitably out-of-date view of social attitudes. It may be that it is possible to detect an increased acceptance of the value and legitimacy of stable personal relationships outside the traditional notion of marriage even since those decisions were given. My personal impression may not be a very secure basis, but, as the claimant pointed out, the fact that the new Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 gives the same rights to those who were cohabiting as partners in a substantial and exclusive relationship and were financially dependent or interdependent as to the survivors of married couples (Article 22 and Schedule 1) is a pointer. However, the degree of social acceptance was only part, and a subsidiary part, of the reasoning behind Shackell. The main reason for finding the situation of the applicant and a widow not to be comparable was that marriage remained an institution widely accepted as conferring a particular status on those who enter it. That must refer back to the "corpus of rights and obligations" attached to marriage, which are markedly different from those as between a couple who cohabit without marriage, as identified in Lindsay and quoted in Shackell. There has not since that decision been any significant lessening of the difference between the bundle of rights and duties attaching to marriage and the bundle attaching to cohabitation without marriage, both while the relationship is subsisting and after it has ended for whatever reason. The Law Commission has recently (May 2006) issued a consultation paper (No 179) on Cohabitation: the financial consequences of relationship breakdown, asking whether the rights and duties of parties to such relationships should be increased, but the law itself has not yet changed in that direction.
29. Accordingly, I conclude that the claimant, as the survivor of a marriage-like relationship with K, was not in a comparable position to a widow, so that there could be no contravention of Article 14 of the ECHR on that ground. Having concluded that there are two obstacles to the claimant's success in this part of her case, each of which would have that effect on its own, there is no need to explore the other elements of that case.
30. However, a slightly different argument emerged in the claimant's written submission dated 8 August 2006, after she had been provided with a copy of decision CG/1259/2002, where the Commissioner had rejected an argument that there was unjustifiable discrimination between unmarried couples in permanent and stable relationships in England and Wales and couples in the same circumstances in Scotland who would be recognised as married through cohabitation with habit and repute. He relied on a statement by Stanley Burnton J in R (on the application of Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin) [2002] 3 All ER 994 to the effect that "discrimination does not arise when different regions apply different rules without discrimination to all those within the region". The claimant submitted that in the light of the decision of the House of Lords in Carson [2005] UKHL 37 [2006] 1 AC 173 and the particular circumstances of the Service Pensions Order (which otherwise provides equal rights to all ex-service personnel and their families regardless of their place of residence), there was unjustified discrimination contrary to Article 14 of the ECHR. She submitted that a woman in her circumstances in Scotland would have been able to establish a valid marriage and so would have been treated as a widow.
31. The Treasury Solicitor wrote in response on 31 August 2006, correcting the letter of 25 August 2006, and saying that where the existence of an irregular marriage is claimed in connection with a claim for a war widow's pension:

"[The Secretary of State] would seek the advice of the Scottish Solicitor's Office as to whether a declarator would be granted by the Scottish court. If the Solicitor advises that the court is likely to grant a declaration of irregular marriage my client may award the appropriate pension if the claimant satisfied the other qualifying conditions for the pension. I am instructed that such claims are extremely rare."

The Treasury Solicitor attached a copy of paragraph 50625 of Volume 2 of the Payments, Rejections, Awards and Maintenance Guide on irregular marriage, which contained the following guidance:

"A couple will be presumed to be married irregularly in the following circumstances, if:

- the couple have LTAHAW [lived together as husband and wife] in Scotland for a considerable period of time. If they had previously lived in Scotland but moved away, an irregular marriage may have been consulted [sic] during their period of LTAHAW in Scotland (provided the other requirements are satisfied)

- the couple consider themselves to be married

- there is no impediment to marriage such as one party already being married and not divorced or one party being below the age of 16 years."

32. In the unusual circumstances of having taken the letters of 25 and 31 August 2006 into consideration, I gave the claimant the opportunity for a final reply. In her observations dated 7 September 2006 she submitted that her relationship with K would, had they resided in Scotland, have fulfilled all the qualifications set out in paragraph 50625 of the guidance and that the Secretary of State had not disputed that, implicitly accepting that in Scotland she would have been paid a war widow's pension. There was therefore discrimination against her based solely on residence within one part of the United Kingdom rather than another, which could not be regarded as justified because of the statement in Carson in a different context.
33. I think that the claimant went too far in that last submission in suggesting that the Treasury Solicitor had impliedly accepted that the claimant met the qualifications in paragraph 50625 of the guidance and would have been paid a war widow's pension in Scotland. I read the letters of 25 and 31 August 2006 as merely setting out the general practice and guidance, without saying anything one way or the other about how they applied to the claimant's circumstances. Nevertheless, the comparison with Scotland raises difficult questions, as I am not satisfied that the discrimination argued could be justified on the basis of the rather opaque statement of Stanley Burnton J in Carson, in the light of the approach of the House of Lords in that case. However, it is not necessary to grapple with all those difficult questions. That is first because, since the issue of comparison with the rules applied to claimants in Scotland was not expressly raised in front of the PAT of 10 November 2005, the issue did not arise sufficiently plainly from the evidence before the PAT that it could be said to have erred in law by failing to deal with it (see Pensions Appeal Tribunals Act 1943, section 5B(a) (PAT need not consider an issue not raised by the parties in relation to the appeal) and Mongan v Department for Social Development [2005] NICA, R 3/05 (DLA)). That in turn depends on my judgment that the evidence before the PAT fell well short of what would be necessary to found an argument that the claimant's circumstances fell within the qualification for recognition of an irregular marriage by cohabitation with habit and repute in Scotland.
34. The doctrine of Scots law that is referred to is in fact a rather more subtle and complicated one than suggested in the guidance. It has been abolished by the Family Law (Scotland) Act 2006, an Act of the Scottish Parliament, with prospective effect only, from 4 May 2006. There are some Social Security Commissioners' decisions which give helpful guidance on a number of issues, drawing on the case-law in the Scottish courts and on academic writings. The first issue is that appeal tribunals and Commissioners, and therefore by parity of reasoning PATs also, have a jurisdiction to determine whether or not parties are or were married as an incidental question for the purpose of determining any question properly before the appeal tribunal or PAT (CSG/681/2003, paragraphs 2 and 3). It is, contrary to the suggestion in the Treasury Solicitor's letter of 31 August 2006, only necessary to seek a declarator of marriage from the Court of Session if it is desired to have a declaration of status that is binding on everyone, rather than only in the case in which the incidental question arises.
35. The other major issues stem from the statement of the principle in Clive, Husband and Wife, 4th ed at 05.025, adopted in paragraph 8 of CSG/681/2003:

"Cohabitation and repute do not in themselves constitute a marriage. Outward actings do not make a marriage. Mere consent does not in itself constitute a marriage either. Marriage requires both a mental element (mutual consent to marry) and an outward or factual element (nowadays either a regular marriage ceremony or cohabitation with habit or repute). Both are necessary. Neither is sufficient. If the outward element is proved, the consent will be presumed to have been exchanged, but this presumption can be rebutted. The theory of the present law on marriage by cohabitation with habit and repute is therefore that if a man and a woman cohabit as husband and wife in Scotland for a sufficient time and are generally held and reputed to be husband and wife and are free to marry each other, they will be presumed to have tacitly consented to be married and, if this presumption is not rebutted, will be legally married."

36. Thus mere cohabitation is not enough to raise the presumption of the exchange of consent and of marriage. There must be what Mr Commissioner May QC in CSG/7/1996 called a general and undivided repute, amongst friends, relatives and the community in general, that the couple are married. There need not be a repute that a regular marriage ceremony has taken place, rather than a repute that the marriage ties with all their rights and responsibilities exist (paragraph 23 of CSG/7/1996 and paragraph 15 of CSG/681/2003). And the presumption can be rebutted, for instance by evidence of the parties' actions and intentions showing that they had not already exchanged consent to marry. An example commonly given is where the parties have expressed an intention to marry in the future or have discussed such plans.
37. In the present case, there was no real evidence before the PAT of any general repute that the claimant and K were married. That is only to be expected, as no-one at that point thought that such evidence could be relevant. The claimant's statement that they were treated by all family and friends "as though married" does not indicate that family and friends thought that they were subject to the rights and responsibilities of marriage. Although my impression is that the true situation was probably sufficiently known that any repute of marriage was not sufficiently general, I would have given the claimant the opportunity to produce evidence at a rehearing before a new PAT if I thought that her discrimination argument had any prospect of success. However, in my judgment there was plainly evidence before the PAT showing that, if the Scots law presumption could have been applied, it would have been rebutted. That, somewhat cruelly, consists in the claimant's enquiry to the Veterans Agency about her rights in the event of K's death and her contention that if they had been informed in time of the rules in the Service Pensions Order, they would have got married. The conclusion seems to me unavoidable, making every allowance for the artificiality of translating the Scottish doctrine into a jurisdiction where the presumption does not in law exist, that that evidence shows that the claimant and K did not regard themselves as already married or as already having exchanged consent to marry. If the claimant and K had been resident in Scotland throughout and the presumption could have been established from a general repute, it would have been rebutted and they would not have been treated as married in Scotland.
38. Therefore, as the claimant could not have benefited from the Scottish doctrine of marriage by cohabitation with habit and repute, the basis of the claim of discrimination falls away. She is not in a comparable situation to a survivor of such a marriage in Scotland. The PAT cannot be found to have erred in law by failing to deal with that issue.

Discrimination between "unmarried dependants who lived as spouses" and surviving partners of other marriage-like relationships

39. On this issue the PAT considered that it had to follow the decision in Hopkins. That was in general correct. Although Hopkins concerned whether a dependency allowance could be awarded with a pensioner's unemployability allowance, it was the effect of the same definition of "dependant living as a spouse" that was decisive. That definition was also decisive in the present case, with the addition of the condition in Article 30 of the Service Pensions Order that the unmarried dependant who had lived as a spouse should be responsible for a child of the service member.
40. Mr Hopkins had claimed the dependency allowance for a lady who fulfilled all the conditions of the definition except that she had not been maintained by him throughout the period beginning six months before the commencement of his service. She had been about five when he entered service. Newman J rejected the argument that there was unjustifiable discrimination contrary to Article 14 of the ECHR. The main ground of the decision was that Article 14 was not engaged because the circumstances did not fall within the ambit of either of the other Articles put forward, Article 8 on respect for private and family life (where he considered also that having started cohabitation after the crucial date did not constitute a status on which a discrimination claim could be based) or Article 1 of Protocol 1. On Article 8 it was decided that the Article did not give rise to a right to receive financial assistance to support family life and there was no evidence of any impairment of the couple's relationship. On Article 1 of Protocol 1 it was held that only contributory benefits fell within its ambit and that pensions and allowances under the Service Pensions Order did not come within that category. In paragraph 56 of the judgment, Newman J said:

"Something which is earned a part of an overall payment package can be seen as an entitlement. An occupational pension scheme can be so regarded, but the entitlement provided for by the [Service Pensions Order] does not depend upon any length of service. Entitlement arises upon disability attributable to service and a dependant's unmarried spouse allowance upon the existence of a dependency. The payments are made out of need and are a form of social security for disablement. In my judgment they cannot be regarded as coming within the overall payment package for service."

41. Although Newman J regarded his conclusions on those points as deciding the case against the claimant, he commented briefly on whether the claimant was in an analogous position to someone who would qualify and on justification. On the former, he said in paragraph 57 that the claimant could not be in an analogous position, otherwise he would qualify for the allowance (which cannot be right). On justification, Newman J said this in paragraph 59:

"It is accepted that had the allowance been limited to married couples it would have been Convention compliant. Its extension to a limited number of unmarried partners is benevolent and promotes the legislative purpose of welfare to the needy. In my judgment, the appellant [the Secretary of State for Defence] is entitled to conclude that there should be limitations, for budgetary reasons, on the extent of benefit. The respondent accepted that some restriction was justified (see below under `remedy'). The requirement that the cohabitation commenced six months before service commenced is not arbitrary. It can be seen as delimiting the appellant's responsibility, which is to support a relationship which existed shortly before military service commenced, has continued through service, through disability attributable to service, to the time of the application. These attributes are significant. Wherever the line is drawn there will be cases falling either side of it. In my judgment had the case for discrimination otherwise been made out, I would have concluded the difference in treatment was justified."

On remedy, paragraph 60 was as follows:

"The PAT recast paragraph 51A of Schedule 4 to substitute a requirement that the cohabitation be for `a period of reasonable length'. Not only was this re-writing the provision, which was not permitted, but it introduced impossible uncertainty. Mr Singh [counsel for Mr Hopkins] invited a reinterpretation in accordance with Article 8(1) which recognised a `genuine and long-term relationship'. The suggestion does not escape the same criticisms. But the suggested course of reinterpretation, having regard to my conclusion that the [Service Pensions Order] is primary legislation, does not arise."

42. The claimant here has submitted that Newman J's conclusion on the ambit of Article 1 of Protocol 1 should not be followed because of the effect of the admissibility decision of the ECtHR in Stec and others v United Kingdom, 6 July 2005 (application nos 65731/01 and 65900/01). It was held there that if legislation provided for the payment as of right of a welfare benefit, whether or not conditional on the prior payment of contributions, it was to be regarded as generating a proprietary interest falling within the ambit of Article 1. Nothing further was said about that holding in the judgment on 12 April 2006.
43. I have concluded below that the claim under Article 14 of the ECHR was bound to fail for other reasons even if dependants' pensions under the Service Pensions Order fall within the ambit of Article 1 of Protocol 1. For that reason, I do not need to express any definite conclusion on the submissions about that question. But having heard detailed submissions, I make a few very brief comments.
44. Mr Henshaw for the Secretary of State submitted that Stec was wrongly decided and that I should not follow it in relation to non-contributory benefits and Article 1 of Protocol 1. He submitted that there the ECtHR had taken a step too far away from what could properly be treated as property, taking into account what had been said by Lord Hoffmann in Carson about an "artificial jurisprudence". I do not find that submission very persuasive. The reasoning in Stec seems to me cogent. But there is no point in my expressing any definite conclusions on the point. That is, first, because there is possibly a problem with the authority of Stec in an inconsistency with the admissibility decision of the ECtHR in Von Maltzan and others v Germany (applications nos 71916/01, 71917/01 and 10260/02), 2 March 2005. Although I think that the circumstances there were so different as to throw no doubt on what was decided a few months later in Stec, Carnworth LJ in Esfandiari v Secretary of State for Work and Pensions [2006] EWCA Civ 282, to be reported as R(IS) 11/06, thought otherwise. Second, there are at least two decisions of the Court of Appeal that are binding on me that decide that non-contributory benefits do not fall within the ambit of Article 1 of Protocol 1. They are Carson in the Court of Appeal [2003] EWCA Civ 797, [2003] 3 All ER 577, particularly what Laws LJ said at [47], and Campbell v South Northamptonshire District Council [2004] EWCA Civ 409, [2004] 3 All ER 387, R(H) 8/04. Lord Bingham has ruled in Lambeth LBC v Kay that an English court must follow the English rules of precedent on questions of the application of the ECHR despite any inconsistency with later rulings of the ECtHR. Thus, at the level of the Commissioner it must be accepted that, if pensions and allowances under the Service Pensions Order fall into the category of non-contributory benefits, they are not within the ambit of Article 1 of Protocol 1 so as to engage Article 14.
45. However, I do not find paragraph 56 of Newman J's judgment in Hopkins at all convincing, although again I am not expressing any definite conclusion. I would tend to regard the service in the armed forces required for entitlement under the Service Pensions Order, even though no particular length of service is required, either as putting that entitlement within the "overall payment package" in a way akin to occupational pension entitlements or as being akin to a contribution made under a more conventional social security scheme. The claimant referred to what Newman J himself said in the later case of Secretary of State for Defence v Reid [2004] EWHC 1271 (Admin), 28 May 2004. He spoke there of the benefits of the Service Pensions Order being limited to those who had acted so as to acquire a basis for entitlement through service and who had an established and direct relationship with the Crown (paragraph 37). Having noted that the risk of death and injury was a function of service, he continued to say (paragraph 46) that he was satisfied that:

"the relationship and proximity of ex-service personnel to the Crown places them in connection with the [Service Pensions Order] in a different situation from that which exists in connection with general social welfare legislation. By their service, armed service personnel acquire a legitimate basis for being provided for in accordance with the legislation ...."

Thus I would have been very reluctant to decide the case against the claimant on this issue. But even on the assumption that Article 14 of the ECHR is engaged, either through Article 1 of Protocol 1 or through Article 8, the claimant still fails.

46. There are three fundamental obstacles. The first is the additional condition in Article 30(2) of the Service Pensions Order that a person who gets within the definition of dependant who lived as a spouse also has a child (meaning in practical terms a child under 16) of the service member in his or her charge. The claimant sought to argue that if she succeeded in her Article 14 discrimination argument about the pre-service dependency condition, the child condition would somehow fall along with that condition or would also contravene Article 14. Her argument that the imposition of the extra condition was unreasonable and should not currently be used as a gateway to a dependant's pension was merely an argument about the merits or otherwise of the rule and did not indicate any ground of illegality. I do not understand her argument that the condition could not be applied to a male dependent partner and was therefore sex-discriminatory. It would be just as possible for a male partner of a female service member to have charge of her child after her death as vice versa. Finally, the claimant argued that there was discrimination on grounds of age or fertility. In so far as there is such discrimination it seems to me to go no further than the difference in treatment involved in having the rule requiring charge of the service member's child. And that difference in treatment can plainly be justified. There are obvious reasons why the state might choose to restrict eligibility to a pension for unmarried dependants who had lived as a spouse to circumstances in which need might be greatest and in which there was an obstacle to the dependant going out to work. The presence of the condition is well within the margin of appreciation allowed to states in the formulation of social policy.
47. The second fundamental obstacle is that in my judgment, even if the definition of "dependant who lived as a spouse" involves discrimination between comparable groups and is caught by Article 14, there is objective and reasonable justification. That is essentially for the reasons given in paragraph 59 of Hopkins. Because I considered that the issue needed some further exploration, I gave the Secretary of State the opportunity after the oral hearing to provide some evidence and submissions about the development of the definition in its application to pensions for unmarried dependants who lived as spouses. I am grateful for the effort put into the research, although it has not taken matters all that far forward.
48. The submission of 21 July 2006 on behalf of the Secretary of State contained the following:

"20. Some provision for dependants falling into a category known at the time as `unmarried wives' has formed part of the scheme since 1917. The condition relating to pre-service dependency was introduced in 1939. The provision was continued into the 1983 SPO under the heading `Pensions to unmarried dependants living as wives' (amended by SI 1983/1154 to `Pensions to unmarried dependants living as a spouse', which altered the provision so as to allow male dependants to claim awards on the same conditions as female dependants).

21. The Respondent has not been able to find any records shedding light on the actual deliberations behind the formulation of the criteria in 1917, 1939 or 1983. In Hopkins the matter was dealt with as a matter of submission. The Respondent respectfully submits that that is consistent with principle: the objectives pursued by legislation are frequently apparent or readily inferable from the text of the legislation, without the need to resort to background materials, and that is the case here."

The Secretary of State then adopted paragraph 59 of Hopkins as accurately reflecting his view of the policy considerations.

49. I had also enquired about the reasons for the revocation of Articles 40 and 41 of the Service Pensions Order in 1993, without any change to the conditions for an award under Article 30, in case that shed some light on the overall structure of the scheme for awards on death. However, as it is now agreed that those provisions had no relevance to Article 30, I need say no more about them.
50. On the general question of justification, the claimant's submission has been that the imposition of the condition of pre-service dependency was arbitrary and perverse, especially in the light of the legislative intention for the special treatment of war pensioners. She said that the condition only served to exclude whole groups of dependants from potential entitlement or, as in her case, the dependants of whole groups of service members, from any possibility of entitlement when they were no less deserving of support than those who could meet the condition. She produced statistics to show that the number of widows' pensions in payment was dropping substantially and that the number of unmarried dependants' pensions was so small as to be recorded as nil, so that there would no significant budgetary effect from ceasing to apply the condition of pre-service dependency. The claimant also submitted that the conditions in the new 2005 compensation scheme showed that the Secretary of State realised that the condition of pre-service dependency was not ECHR-compliant and could no longer be justified.
51. I do not agree that the pre-service dependency condition is arbitrary and perverse. I have to look at its terms in the context of the Service Pensions Order as a whole without any useful evidence about the reasons for its introduction. In fundamental agreement with paragraph 59 of Hopkins, it seems to me that the current purpose of the condition is to accept a responsibility to a service member who enters service in an existing bona fide domestic relationship involving dependency. To adapt a legal phrase, the condition accepts that the armed forces should take the service member as they find him on entry into service. Then, if the relationship endures until the service member's death, that responsibility is reflected in entitlement to a pension for the dependant, but only if the dependant has care of a child of the service member. That is a very narrow assumption of responsibility, but it constitutes an objective justification for the identification of which dependants living as a spouse at the time of the service member's death should qualify for a pension. And it is within the range of reasonable responses that the state was and is entitled to choose within the margin of appreciation allowed to it. I do not need to look at budgetary considerations as any separate factor. It is simply reasonable as a matter of social policy for the state to limit the scope of pensions for unmarried dependants in the way it does.
52. There remains the question of comparison with the terms of the 2005 compensation scheme. First, I agree with the claimant that such a comparison is not excluded just because K died in January 2004 and the new compensation scheme did not come into effect until April 2005. As she pointed out, proposals for the new scheme, including improvements in benefits for unmarried dependants, have been under discussion for some years, and prior to 2004. Second, I agree with Mr Henshaw for the Secretary of State that the adoption of different conditions in the new compensation scheme does not of itself show a recognition that the condition of pre-service dependency in the Service Pensions Order was not ECHR-compliant. Both sets of conditions could be within the range of reasonable responses within the state's margin of appreciation. But there must remain at least some sense of unease that as from April 2005 the two schemes will run side by side, depending on whether disablement was due to service before of after 6 April 2005, with different conditions. However, that does not affect my conclusion on justification. The structure of the 2005 compensation scheme, in the form of benefits available, the balance between the more severely and the less severely disabled and in the burden of proof to be shown for entitlement, is very different from that of the Service Pensions Order. The contrast between the very favourable burden of proof under the Service Pensions Order for a claimant to establish that disablement or death was due to service and the ordinary burden of balance of probabilities under the 2005 compensation scheme means that there is not a proper basis for analogy between the conditions for payment of a survivor's pension in the two schemes.
53. The third fundamental obstacle to the claimant's success on this part of her case is that (on the assumption that there was unjustifiable discrimination contrary to Article 14 of the ECHR as argued by the claimant) in my judgment it would not be possible to read and apply Article 30 and the definition in paragraph 51A of Schedule 4 to the Service Pensions Order so as to remove that discrimination. Similar considerations to those mentioned in paragraph 20 above on Article 29 apply. The removal of the condition of pre-service dependency, especially if the condition of charge of a child were also removed, would make such a radical change as not to be consistent with the underlying thrust or fundamental nature of the provisions. If it was argued that some other restrictions on the scope of eligibility could be imposed, by defining the nature of the relationships that would qualify, that would in my view be a task that a Commissioner or a court is not equipped to carry out (see Ghaidan at [33] in paragraph 18 above). It would essentially be a legislative task. Newman J in Hopkins, without the benefit of the guidance in Ghaidan, thought that recasting the definition in terms of cohabitation for a reasonable time or a genuine and long-term relationship would be an impermissible re-writing of the provision. The widened scope given by Ghaidan in the interpretation of even primary legislation does not change that conclusion. As noted above, a Commissioner has no power to give a declaration of incompatibility with the ECHR.
54. I have considered whether there is any additional scope for interpretation in the Human Rights Act context given by the fact that the definitions in Schedule 4 to the Service Pensions Order apply only unless the context otherwise requires. But that approach has been knocked on the head by Sedley LJ in Langley v Bradford Metropolitan District Council [2004] EWCA Civ 1343, R(H) 6/05, at [84]. Rights under the ECHR are not part of the context of a legislative provision for this purpose; they are a filter through which the meaning of the original legislation must pass if it can.
55. Accordingly, for any one of those three reasons, the claimant's case on discrimination between the surviving partners of marriage-like relationships and those who meet the definition of "dependent who lived as a spouse" cannot succeed.

Conclusion

56. The PAT therefore reached the only decision open to it in law, reading its decision as by necessary implication extending to a disallowance of a claim to a widow's pension under Article 29 of the Service Pensions Order. Its fundamental reasoning was expressed by its application of the decision in Hopkins. Any failures to explain why the claimant's specific contentions had been rejected were secondary. I trust that those contentions have been fully dealt with in my decision. In those circumstances, the claimant's appeal to the Commissioner is disallowed.

(Signed) J Mesher

Commissioner

Date: 20 October 2006