Seeking legal change in the courts – case study of a Supreme Court intervention

by stevebroach

I had the privilege of being instructed by the Childhood Bereavement Network (CBN), part of the National Children’s Bureau, in a recent Supreme Court intervention with colleagues at Irwin Mitchell’s public law team. The case concerned the different treatment of cohabiting partners and their children in relation to bereavement benefits compared with married couples. In this guest post, CBN’s Director Alison Penny describes the process of intervening in a case before the UK’s highest court and offers tips for other NGOs considering intervening in cases with wider public importance.

The problem 

Here at the CBN, we get fairly regular incredulous phone calls or emails asking us if it’s true that unmarried, cohabiting parents can’t claim bereavement benefits if one of them dies. Usually, the call comes from someone ringing on behalf of a friend or family member who has recently faced the devastating loss of their partner. They have been told that the family won’t be eligible for bereavement benefits, and simply can’t believe in this day and age that this is true.

Astonishingly, it is. We know that each year, around 2,000 families face the double blow of one parent dying and the other discovering that they and the children won’t get bereavement benefits. On average, these families lose out by over £12,000 before their children reach adulthood. Parents make the same National Insurance contributions whether they are married or not. These build up their entitlement to a state pension or, if they die before they can draw it, to survivor benefits for their family. But these benefits are only paid if the survivor was married to or in a civil partnership with the person who died.

Some couples with children choose not to marry, or can’t marry, for a range of reasons, and are fully aware of the financial risks this brings. But alarmingly, more than half of couples living together have no idea: they believe that by cohabiting they have the same legal rights as if they were married. In fact, there is no such thing as common law marriage in the UK (unless the couple were living together ‘with habit and repute’ before 2006 in Scotland).

This lack of awareness stems in part from the inconsistent treatment of cohabiting couples. If the government insists on treating you and your live-in partner as a couple for tax credits and means-tested benefits, why would you expect to need a marriage certificate to receive bereavement benefits? For us at CBN, the problem is that as well as discriminating against the surviving partner on the grounds of their marital status, the policy also discriminates against the couple’s children.

CBN’s campaigning on the issue

Until very recently, we took a two-pronged approach to tackling this social injustice. We tried to raise public awareness of the lack of rights for cohabiting couples through our Plan If campaign, and at the same time coordinated a group of concerned organisations lobbying in Parliament to whoever would listen. We gave evidence to the Work and Pensions Select Committee, and on the strength of this the Committee recommended in March 2016 that eligibility be extended to cohabiting couples with children. But the Government held fast to its position that inheritable benefits derived from someone else’s National Insurance contributions have always rested on the marriage or civil partnership, and they were not minded to look at this again.

Cohabitation and the courts

Alongside this dual approach, we followed with interest the case of Siobhan McLaughlin. She and her partner John had four children together during their 23 year partnership. They never married, because prior to meeting Siobhan, John had promised his dying wife that he would not remarry. After John’s death, Siobhan learned that she was not eligible for Widowed Parents’ Allowance to help raise the children. She appealed this and won her challenge in the High Court in Belfast in December 2015, but this was subsequently overturned by the Court of Appeal. However, she was given leave to appeal to the Supreme Court.

We read the judgments from the High Court and Court of Appeal and felt that there was some contextual material missing which frustrated us. We knew that our parliamentary campaigning was likely to stall until the Court made its ruling, so we resigned ourselves to sitting on the sidelines.

Making an intervention

However, colleagues from the Child Poverty Action Group (CPAG) soon got in touch to ask if we would be seeking permission to intervene in the case. Not being familiar with the judicial process, we had to look up what this meant. Realising that this could give us an opportunity to share in court the evidence we’d been gathering for parliamentarians and the media, we were keen to consider it. We contacted the Registry at the Supreme Court who were extremely helpful in explaining the process, but realised we needed more support. We got in touch with Steve Broach, a former colleague with the National Children’s Bureau and Council for Disabled Children, now a human rights barrister at Monckton Chambers. At that stage, we just needed someone who’d be able to answer our very uninformed questions about the process.

Steve read the case papers through, and we talked through what evidence we had or could collect that might be helpful to the court. He offered to represent us pro bono and kindly introduced us to solicitor Alex Rook at Irwin Mitchell, who agreed to work with us on the same terms. Without these most generous gifts of time, there is no way that a tiny organisation such as ours would have been able to get involved. We have just 1.4 full time equivalent members of staff, and we have to marshall these resources very carefully.

Steve and Alex talked us through the process, and spoke to our counterparts at CPAG to make sure that our interventions would complement rather than repeat one another. They helped us seek consent from Siobhan’s and the government’s solicitors to ask for permission to make written interventions and, crucially, an undertaking that they would not seek costs against us. Without this clear undertaking, we had to weigh up the financial risks of intervening. After very careful consideration of the risks set out by Steve and Alex, we decided to go ahead.

Preparing the submissions

What followed was a twin track process of gathering the evidence we wanted to submit, and making sure it was in the format that the Supreme Court required. There were almost as many emails about font size as there were about legal arguments! Meeting the strict deadline to make our submissions involved some very late nights.

Two widowed parents had contacted us during our earlier campaigning work to describe how bereavement benefits for children were structured elsewhere in Europe. This was a crucial part of our evidence, and we put a call out to NCB colleagues to enlist foreign-language-speaking friends and family to translate obscure social security documentation for us.

Alex and his colleague Rosie did a superb job of juggling multiple copies of documents, suffixed with ever-increasing version numbers. It was a huge relief when the bundle was submitted, and there were no further tweaks we could make.

Approaching the hearing

 There were however many more questions to pose to Steve and Alex, who were endlessly responsive and good-humoured. We needed to know more about the process, including whether we could attend in person and when the judgement was likely to come out. We had many queries about the media work we could and should do in the run-up to the hearing, and consulted on the wording of tweets and press releases.

Thanks to Siobhan and her solicitor Laura Banks’ willingness to talk to the media, the case was covered extensively in the run up to the hearing on 30 April. The Supreme Court heard the case during its first ever sitting in Belfast, and there was a palpable sense of excitement in the court buildings at hosting the sitting. We even managed a little live-tweeting.

It was pleasing to hear our evidence being mentioned by the other parties in the case during their oral submissions – those late nights felt worth it. But more broadly it felt good to be present for the culmination of many years’ work from campaigning organisations and from Siobhan and her legal team. She and her children attended the hearing and provided an excellent demonstration of the legislature in action.

Ideally, the government would have changed its position years ago, and there would have been no need for Siobhan to put herself and her family through the effort and scrutiny of taking the case to court. Whatever the outcome, she has done a brave thing in drawing the court’s attention to this issue, and raising awareness among the general public along the way. We are proud to have been part of this. Now we are more familiar with the process, we would feel more confident about intervening again in cases that relate to discrimination against grieving children and those caring for them. It’s a new string to our campaigning bow.

Advice to potential interveners

•  Talk to any other actual or potential interveners in the case to make sure that your evidence won’t be repetitive.
• Weigh up the risks and benefits of intervening carefully. Involve all those who are necessary to the decision at an early stage – but remember that you can always withdraw right up to the point you send in your submissions.
• Some of the evidence you would usually include in a briefing paper or campaign document might not be relevant or admissible to the court. Listen to your lawyers about what you should include.
• Be well organised. It will be much easier for your legal team to advise you and keep track of document versions if you set out your queries and amendments clearly.
• If you don’t already know any solicitors or barristers who may be willing and able to advise and act for you in an intervention, you can try contacting Law Works, a charity which connect volunteer lawyers with people in need of legal advice, who are not eligible for legal aid and cannot afford to pay and with the not-for-profit organisations that support them. You can also ask other NGOs in your sector if they know of lawyers with the right expertise who may be interested in your potential intervention.
• You might find it helpful to attend a training course on the use of judicial review, such as that offered by the Child Poverty Action Group