R (Jwanczuk) v Secretary of State for Work and Pensions

In a judgment handed down on 7 September, Mr Justice Kerr found that the qualifying condition, which requires the deceased spouse of any claimant to have actually paid national insurance contributions, violates Article 14, read with Article 1 of the First Protocol, because it results in denying BSP to a person whose deceased spouse was unable to work and therefore unable to pay national insurance contributions throughout his or her working life due to disability. In so finding, Kerr J agreed with an earlier decision of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36, which had reached the same conclusion in relation to materially identical secondary legislation applicable to Northern Ireland. The High Court decision means that the ‘principle of parity’ in social security law between different UK jurisdictions is preserved and that the content of the human rights at issue in this case have the same content in England and Wales as in Northern Ireland. The High Court has granted permission to the Secretary of State to appeal to the Court of Appeal.