The Court of Appeal held that exclusion of a surviving partner from death benefits due to an estranged marriage may be unlawful discrimination.
Mrs Langford was the surviving partner of a Royal Airforce officer who died suddenly in service on 17 May 2011. They had been in an exclusive relationship “akin to marriage” for 15 years.
Mrs Langford remained married to her estranged husband, even though they had been separated for 17 years and Mrs Langford and the member intended to marry.
Mrs Langford’s request for a benefit under the Armed Forces (Compensation Scheme) (AFCS) Order 2011 was denied. Rule 30 of the AFCS only allowed payment of death benefits to surviving dependents where the dependant and member were in a “substantial and exclusive relationship” and were not “prevented from marrying”. Mrs Langford’s estranged marriage meant that she failed to meet this requirement.
Mrs Langford complained that the rule unlawfully discriminated against her contrary to Article 14 of the ECHR. The SOS for Defence submitted that any discriminatory effect of the rule was justified because it arose in the context of social/welfare policy on payment of benefits from public funds.
Mrs Langford’s claim was unsuccessful in the First Tier Tribunal and on appeal to the Upper Tribunal. On 8 February 2017, the Supreme Court handed down its decision in Re Brewster and Mrs Langford successfully appealed the Upper Tribunal’s decision based on the decision in Re Brewster.
Both parties accepted that the case fell within Article 14 ECHR and Mrs Langford could bring the claim on the basis that the rule was discriminatory, so the case turned on whether the SOS for Defence could justify the discrimination resulting from the exclusionary rule.
The government did not provide a notice responding to Mrs Langford’s appeal, and therefore could not request for the Upper Tribunal’s decision to be affirmed on different grounds. The Court of Appeal refused the government’s late application to submit new evidence relating to arguments in connection with Re Brewster.
Click here for our report on the Re Brewster case in our update last year.
Re Brewster and “reasonable foundation”
The Court of Appeal found that the discrimination created by the exclusionary rule was not justified.
Applying Re Brewster, the court found that spouses qualified automatically for death benefits and surviving adult dependants had to satisfy the “substantial and exclusive relationship” condition. Exclusion of partners based on an estranged marriage was therefore a way of identifying dependents in that latter category, it was not the aim of the rule itself.
In forming its decision, the court considered whether the discrimination introduced by the rule was “manifestly without reasonable foundation”. This test assumes that discrimination is justified unless it is shown that there is no reasonable foundation for it.
The SOS for Defence claimed the exclusionary rule had three aims which provide a reasonable foundation for the discrimination:
- to achieve parity of treatment between married and unmarried partners of scheme members;
- to prevent double recovery by the partner in the event that the partner's spouse was also a member of the same or similar public service scheme; and
- to avoid an increase of cost in the scheme and administrative inconvenience.
Aims (2) and (3) do not feature heavily in the case, however the Court of Appeal disagreed that any of the aims provided a reasonable foundation for the exclusionary rule on the evidence provided.
In relation to “parity of treatment”, which directly applied in Langford, the court held that the exclusionary rule used to achieve parity of treatment unlawfully discriminated against surviving partners such as Mrs Langford, contrary to the rule’s stated aim.
The Court of Appeal rejected any of the SOS for Defence’s aims as a “reasonable foundation” for the difference in treatment of Mrs Langford.
Court of Appeal decision
The court held that the discrimination against Mrs Langford was unlawful and her appeal was allowed.
The court’s decision clarifies that the “aims” of a scheme are separate to the “means” used to achieve them. The court held that the aim of the exclusionary rule was legitimate – to provide parity of treatment for death benefits provided for married and non-married members who had substantial relationships – but the discrimination required under the exclusionary rule to achieve that aim was unlawful and “without reasonable foundation”. There was no rational link between excluding partners with estranged marriages and parity of treatment between married and non-married partners.
Lord Justice McCombe suggested that the best way to achieve the stated aim would have been to establish an adult dependant’s “substantial, exclusive and financially dependent relationship” with the deceased member rather than introducing discrimination between married/non-married partners. The rule prohibiting Mrs Langford’s qualification as a beneficiary was not an objectively justifiable and rational method of achieving parity of treatment.
The government’s inability to provide further evidence may have contributed to the court’s conclusion that – on the evidence the government was able to provide – the difference in treatment was not justifiable.
Langford illustrates the dichotomy between the “aims” of a scheme and the means used to achieve them. Legitimate aims may be connected to discriminatory and unlawful rules, and conversely illegitimate aims may hide behind lawful provisions in a trust deed and rules. Langford and Re Brewster provide an opportunity for trustees and employers to reflect on their governing documents and ensure their aims/means comply with the decisions in those cases.
A related issue is the test for whether discrimination is “without reasonable foundation”. Lord Justice McCombe’s comments suggest the standard applied by the courts in assessing economic measures introduced by state bodies is still open to judicial interpretation, however a purposive approach was adopted in Langford to determine whether the discriminatory rule was appropriate to achieve the legitimate aim of parity of treatment.
The court’s comments also suggest that the discrimination may have been justified had different facts or evidence been submitted. Langford’s procedural background may have impacted on the case’s outcome, but it nevertheless highlights the importance of increased visibility when reviewing trust deeds and rules to determine (1) whether they contain any discriminatory provisions and (2) if so, whether there is a reasonable foundation for the difference in treatment.