Annex 2: C.163/02 Department for Work and Pensions
Jump to
1. Mr A complained that the former Department of Social Security, now the Department for Work and Pensions (DWP) – for clarity I refer to DWP throughout – had acted unfairly by failing to treat his claim (as a widower) for widow’s benefits in the same way as they dealt with a claim by Mr David Cornwell2 (another widower). He also complained that DWP had unfairly refused to apply their discretion in the circumstances of his case despite a friendly settlement offered to Mr Cornwell whose circumstances, according to Mr A, were comparable to his own.
2. As you know, on 31 January 2002 the Ombudsman suspended the investigation in view of an application by several widowers for judicial review of DWP’s refusal to grant them widow’s benefits: the Ombudsman saw Mr A’s complaint as having raised technical and legal issues on which the outcome of the other widowers’ judicial review would be likely to have a bearing.
Statutory background
3. Sections 36-38 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) provided three main benefits to widows: widow’s payment was a lump sum of £1,000 payable only to women; widowed mother’s allowance provided weekly payments to women with dependent children; and widow’s pension provided weekly payments to women between the ages of 46 and 64 with no dependent children. The award of all three benefits was subject to conditions, including the adequacy of the late husband’s National Insurance contributions, and restricted to those under pensionable age. The Welfare Reform and Pensions Act 1999 abolished widow’s payment, widowed mother’s allowance, and widow’s pension for deaths occurring after 9 April 2001. The new legislation had the effect of no longer treating widows and widowers differently for social security purposes.
Jurisdiction
4. The Ombudsman’s remit is to investigate the administrative actions of Government departments such as DWP. The Ombudsman has no power to decide who receives widow’s benefits – that is a matter for DWP in the first instance and on appeal (subject to conditions) for the relevant tribunal. Under section 5(2)(a) of the Parliamentary Commissioner Act 1967 (the 1967 Act), the Ombudsman is generally debarred from investigating any matter in respect of which an aggrieved person has, or had, a right of appeal to an independent tribunal. Also under section 5(2)(b) of the 1967 Act, the Ombudsman is generally debarred from investigating a matter in respect of which a person has or had a remedy by way of proceedings in any court of law. Section 12(3) of the 1967 Act declares that the Ombudsman is precluded from questioning the merits of a decision taken without maladministration by a Government department in the exercise of discretion vested in it. Section 5(5) of the 1967 Act provides that in determining whether to initiate, continue or discontinue an investigation under that Act the Ombudsman shall, subject to the provisions of that section, act in accordance with her own discretion. Finally, section 10(4) of the 1967 Act provides that the Ombudsman may from time to time lay before Parliament such other reports derived from the exercise of her functions as she sees fit.
Background to the complaint
5. On 30 May 1997 Mr David Cornwell, a widower, made a claim to the European Court of Human Rights (the European Court). He argued that the failure of DWP to grant relief to him, following the death of his spouse, equal to what would have been received had he been a woman, constituted sex discrimination in breach of the European Convention on Human Rights (the Convention). His case was that the failure to grant him a payment equivalent to widow’s benefits was a breach of Article 14 of the Convention (the prohibition of discrimination) read with Article 1 of Protocol 1 and Article 8 (the right to peaceful enjoyment of possessions and the right to respect for private and family life). The UK Government contested admissibility in relation to the period before Mr Cornwell made a written claim for benefit – the European Court found that until Mr Cornwell had made such a claim he could not be declared to be a victim of a violation of the Convention. However, after having taken legal advice, Ministers decided that the part of Mr Cornwell’s case that related to the period after he had made a written claim should not be contested. On 22 July 1999 and 18 January 2000 the Government resolved Mr Cornwell’s challenge through a friendly settlement, without a determination by the European Court. The Government agreed to pay Mr Cornwell an amount equivalent to what he would have been paid had widow’s benefits been available to men, from the date he had requested payments equivalent to widow’s benefits, plus his legal costs.
6. On 5 May 2000 Mr A’s wife died. By his own account, in May and August Mr A notified DWP that he wished to claim widow’s benefits as a widower, but DWP refused his claim. DWP dispute that Mr A made a claim at that time. DWP accept that on 10 August 2001, after he was already in receipt of a Widowed Parent’s Allowance, Mr A made a written claim for widow’s benefits. Subsequently, when Mr A complained to the Ombudsman through the member, he referred to Mr Cornwell’s case (paragraph 5), saying that DWP had unfairly refused to apply their discretion in the circumstances of his case despite the friendly settlement offered to Mr Cornwell.
DWP’s response to Mr A’s complaint
7. The Chief Executive of the Benefits Agency (as it then was) said that there was no evidence that Mr A had made a written claim for widow’s benefits before August 2001, and that the Agency saw the evidence of oral exchanges as conflicting. She said that the decision not to pay equivalent compensation to Mr A, following the friendly settlement with Mr Cornwell, was a matter of law and policy. She said that the primary legislation governing the entitlement of widow’s benefits was unambiguous. There was no statutory basis to make payments of widow’s benefits to men. Mr A had been advised that he had no entitlement to a payment of benefits under the 1992 Act. DWP’s policy in such cases was to consider an extra-statutory payment only where proceedings to the European Court had been ruled admissible. That ensured that DWP offered friendly settlements only when there was a case to address – that is, when all the conditions for receiving widow’s benefits were satisfied except that the applicant was a man, not a woman. The Chief Executive saw that policy as ensuring that DWP treated comparable cases fairly and consistently. She concluded that Mr A was aware of the action he needed to take to be considered for a payment equivalent to widow’s benefits.
Further developments
8. Between October 2000 and May 2001 several widowers applied for judicial review of DWP’s decision to refuse them widow’s benefits and were granted leave to proceed. On 14 February 2002 Mr Justice Moses delivered judgment. In brief and in part, he held:
a. that sections 36 and 37 of the 1992 Act were contrary to Article 14 read with Article 8 of the Convention; section 38 (widow’s pension) was not (because the objective justification defence was successful).
b. that those sections could not be interpreted so as to entitle widowers to widow’s payment, widowed mother’s allowance, or widow’s pension; and
c. that there was no unjustifiable discrimination within the meaning of Article 14 between widowers who brought claims before the Court and those who did not, and that the policy of reaching friendly settlements with the former group while contesting the cases before him was not irrational.
d. that there was a need to make a written claim.
e. that the Secretary of State had not acted unlawfully under the Human Rights Act 1998.
Mr Justice Moses made a declaration of incompatibility between the Convention and sections 36 and 37 of the 1992 Act.
9. Thus Mr Justice Moses saw DWP as legally entitled to treat widowers who had not applied to the European Court differently from those who had. Parliament had already been considering changing the law on widow’s benefits when DWP had chosen to offer friendly settlements to Mr Cornwell and the other litigants. Neither the Government nor DWP had led widowers to believe that claims in the domestic courts would be settled. Widowers had not had an expectation, in the same way as widows, that they would receive widow’s benefits. As a matter of domestic law, DWP were entitled to treat claimants who made applications to the European Court differently from those who had not. Mr Justice Moses also ruled that by settling with the claimants at the European Court, the Government had not bound itself to accept similar claims. The Government was entitled to settle those claims whilst maintaining a position to defend itself, in respect of major constitutional points in domestic law.
10. The applicants for judicial review were granted leave to appeal against the judgment. The substantive hearing of the appeal took place between 7 and 10 October 2002 and judgment has been reserved.
11. On 21 August 2002 the Permanent Secretary of DWP told the Ombudsman that in his view Mr A, given that he had chosen not to make an application to the European Court as Mr Cornwell had done (paragraph 5), could have taken judicial proceedings in the domestic courts as other widowers had done (paragraph 8). He said that DWP had agreed not to take any point on limitation on those scheduled cases until the final outcome of the lead cases was known. He said that it remained open to Mr A to add his name to the schedules (at no cost) and that DWP would be happy to assist him in that process. The Permanent Secretary said he saw the issues Mr A complained about as ones properly for the courts, and the judicial review proceedings were current. He went on to question the Ombudsman’s jurisdiction to investigate Mr A’s complaint, citing among other things, section 5(2)(b) of the 1967 Act (paragraph 4).
The Ombudsman’s decision to discontinue the investigation
12. I do not share the Permanent Secretary’s view that the initiation of an investigation into Mr A’s complaint was outside the Ombudsman’s jurisdiction. It was both within his remit, and appropriate, to initiate an investigation into Mr A’s complaint – the nub of which was that DWP had acted unfairly in refusing to extend to him the benefit of the friendly settlement granted to Mr Cornwell (
13. However, I readily accept that the eventual outcome of the litigation may well have a bearing on the position of Mr A and other widowers. Although the appeal against Mr Justice Moses’ judgment came before the courts between 7 and 10 October 2002, the eventual outcome can only be a matter of speculation. Taking account of that – and of what I go on to say about the substantive issues – I conclude that, under authority delegated by the Ombudsman, I should exercise her discretion under section 5(5) of the 1967 Act (paragraph 4) to discontinue this investigation.
14. I would emphasise that it is not for the Ombudsman to make legal determinations, just as it is not for her to decide who is entitled to widow’s benefits (
15. The Chief Executive has explained DWP’s reasoning: they saw the intention of the legislation as unambiguous, that the benefits were for widows not widowers. They therefore did not consider that an extra-statutory payment was appropriate in the general run of cases. Their policy was to consider an extra-statutory payment only where proceedings had been initiated before the European Court and ruled admissible (
16. There is no doubt that DWP were applying a policy that had been approved by Ministers. It is sometimes said that “the Ombudsman may not question the merits of Government policy”. However, in my view that is too simple. A policy of deliberate unfair discrimination, for example, would in my judgment be maladministrative and as such open to legitimate criticism by the Ombudsman.
17. The issue of Mr A not having made a written claim apart, there is no reason to suppose otherwise than that if the European Court had heard a case brought by someone whose circumstances were similar to those of Mr A, it would have found in his favour and awarded him appropriate compensation: that is the clear implication of Mr Justice Moses’ judgment. Such a finding of the European Court would have had to be honoured by the Government by virtue of its obligations under international law. So the effect of DWP’s policy – or of the law, as they see it – was to require Mr A, and others in similar circumstances, to vindicate their rights by the lengthy and inconvenient process of making an application to the European Court, since before the coming into force of the Human Rights Act 1998, there was effectively no possibility that they could do so through the domestic courts. Notwithstanding that the domestic courts did not find that discrimination illegal, I see obvious grounds for criticising such a policy as unfair and unreasonable.
18. On the other side, it could be argued that DWP had no power in law to adopt a policy of making extra-statutory payments to all who satisfied the conditions, other than that of being a woman, required for the award of widow’s payment or widowed mother’s allowance. Clearly it could not be maladministrative of DWP to have rejected a policy which it was beyond their legal powers to implement. It is clear that the provisions of sections 36 to 38 of the 1992 Act could be interpreted only as DWP did interpret them. As far as I am aware, DWP took appropriate legal advice and laid out the issues for consideration by the Minister who decided the policy. It is also relevant that the Government had decided to remove the discrimination between widows and widowers, and that in effect that was achieved by the Welfare Reform and Pensions Act 1999.
Conclusion
19. I have come to the conclusion that continuing my enquiries will not progress matters further; and I have exercised the Ombudsman’s discretion to discontinue her investigation accordingly (paragraph 4). Insofar as there is an injustice for Mr A, or a difference of treatment as the Permanent Secretary would put it, I see it as derived from legislation rather than maladministration. As such, it is a matter for Parliament to consider. Given that the domestic legal proceedings following Mr Justice Moses’ judgment have not yet concluded (paragraph 10), I see it as appropriate for the Ombudsman to draw the attention of Parliament to matters as they stand, by way of a report (of which this letter would form an annex) under section 10(4) of the 1967 Act (
Alan Watson
Deputy Parliamentary Commissioner for Administration
October 2002
2 It is the normal practice of the Ombudsman’s office not to identify persons other than the complainant. However, in this case the names of those mentioned are public knowledge as a result of the litigation mentioned in paragraph 8 and following below.
