The Secretary of State for Work and Pensions v Syed Muhid Ali

On 8 March 2024 the Supreme Court granted permission to the SSWP to appeal the decision made in R –v- Secretary of State for Work and Pensions Ex Parte Jwanczuk (Order enclosed). The appeal has been listed for a hearing before the Supreme Court on 11th and 12th March 2025. Live litigation is therefore currently ongoing in relation to the decision made in Jwanczuk. If the SSWP wins in Jwanczuk, there would be no basis in law on which Mr Ali could be entitled to BSP. In these circumstances, the SSWP considers that stays would be appropriate in any ‘lookalike’ appeals to Jwanczuk. It is not appropriate for the SSWP him to be involved in two sets of proceedings that traverse the same/similar issues, at the same time. More importantly, the Supreme Court proceedings must take place first, given that the Supreme Court proceedings will resolve the key underlying issue at hand, namely whether a claimant who does not meet the entitlement condition in section 30(1)(d) of the Pensions Act 2014 can ever be entitled to BSP. It was an error of law for the Tribunal to determine the appeal by Mr Ali when the key underlying issue in that appeal was the subject of live litigation in the Court of Appeal and Supreme Court. I therefore request a stay behind the Supreme Court’s decision in Jwanczuk.

For an individual to qualify for BSP, their late partner, for at least 1 tax year since 1975, must have paid enough Class 1 or 2 national insurance contributions (“NICs”) with an earnings factor at least 25 times the lower earnings limit (see section 31(1) of the Act). By “partner” we mean spouse, civil partner or cohabiting partner. BSP can only be paid to cohabiting partners with a dependent child or children.

The Tribunal found that Mrs Ali had not paid any NICs since 2004 and was then credited with NICs in full in every tax year after she had married until she sadly passed away in October 2022. Mrs Ali’s NIC record shows that she paid 23 Class 1 NICs in the 2004/05 tax year and this appears to be the only year she worked during her working life, which begins at age 16 (pp. 20-25). This, I submit, was not enough to satisfy the contribution condition and allow Mr. Ali entitlement to BSP. There is no indication that Mrs Ali’s NIC record is incorrect or disputed.

I submit that the Tribunal incorrectly found that there were no material differences between the claimant in this instant appeal and the claimant for which the decision made in R –v- Secretary of State for Work and Pensions Ex Parte Jwanczuk (Jwanczuk) relates.

Even if the PO conceded that the decision in Jwanczuk directly applied to the facts in the present case, I respectfully submit that concessions made by presenting officers are not binding on a first-tier tribunal and do not preclude the Secretary of State from taking a different stance before the Upper Tribunal. In CSG/548/08 (attached) at paragraph 11 the Commissioner said that:

Also, in AW v Secretary of State for Work & Pensions (JSA) (No. 1) [2013] UKUT 098 (AAC) (CJSA/1095/2012), at paragraph 23 the Judge said:

The decision in Jwanczuk ruled that Mr Jwanczuk had the status of being one of that group of persons who are the spouse of a deceased person who was so severely disabled that they were unable to work their entire working life. It is my submission that the Tribunal have erred in law when comparing Mr Ali and Mr Jwanczuk and when applying the decision in Jwanczuk to Mr Ali’s circumstances.

Firstly, the Tribunal failed to make adequate findings of fact as to the disability that affected Mrs Ali. The Tribunal simply found that,

No specific disability was identified by the Tribunal in order for them to assess whether it should be considered as so severe it would have prevented Mrs Ali from participating in any form of work her entire working life. Insufficient findings were made as to whether Mrs Ali had suffered with her disability for all her working life or just for part of it. The Tribunal failed to make adequate findings in relation to whether Mrs Ali had been in receipt of any non-means tested disability benefits such as DLA and/or PIP at any time during her life. Mrs Ali’s NIC record also shows that she was in receipt of HRP (Home Responsibility Protection), which are credits earned when you are caring for a child and receiving Child Benefit. No findings were made by the Tribunal as to whether Mrs Ali required help to care for her children and/or was unable to do so due to her disability. Notwithstanding, the Tribunal did make findings that Mrs Ali had received training in 1990-91 and worked during her working life in 2004/05 and therefore was not so severely disabled that she could not work during her entire working life. I submit that the Tribunal’s findings therefore contradicted the reasoning for their decision.

The Tribunal found that it was after Mrs Ali married that she was unable to work as they agree that she worked in the tax year 2004/05. They stated,

I submit that the decision in Jwanczuk did not concern a person who was unable to work due to a severe disability during their marriage but during their entire working life. It is my submission that the Tribunal has misdirected itself when applying the decision made in Jwanczuk to this instant appeal.

As the Tribunal have accepted that Mrs Ali did pay NICs during her working life, it is my submission that the Tribunal have erred in law when finding as follows:

I submit that there is a material difference between Mr Ali and Mr Jwanczuk that being that Mrs Ali was not so severely disabled that she was unable to work her entire working life. The case of Mr Ali is therefore not on all fours with that of Mr Jwanczuk. The Tribunal incorrectly stated that Mr Ali had the status of being one of that group of persons who are the spouse of a deceased person who was so severely disabled that they were unable to work their entire working life and therefore unable to satisfy the contribution condition for entitlement to BSP.

The Tribunal further found, in para 21 of the Statement of Reasons For Decision, that Mrs Ali’s NI credits should be considered when determining if she satisfied the contribution conditions for BSP. Section 31(1)(a) of the Pensions Act 2014, however, expressly requires a person to have “actually paid” Class 1 or Class 2 NICs. The legislation, therefore, excludes credits from satisfying the contribution condition for BSP. The Tribunal erred in law by allowing Mrs Ali’s credits to count towards the contribution condition, against the clear grain of the primary legislation.

I therefore respectfully request that the decision of the First-tier Tribunal on 07/12/2023 be set aside and the matter be re-determined under section 12(2) of the Tribunal, Courts and Enforcement Act 2007 or this instant appeal is stayed for the above reasons provided at paragraph 2 of this submission.”

It is submitted that the respondent, Mr Syed Muhid Ali, is not entitled to Bereavement Support Payment (BSP), in respect of his late wife, Mrs Julie Ann Ali, who sadly passed away on 03/10/20[22]. The respondent is not entitled to BSP as the contribution condition for the benefit is not satisfied. This is because the deceased did not pay enough Class 1 or 2 National Insurance contributions during her working life.

Section 31(1) of the Pensions Act 2014 provides that for an individual to qualify for BSP, their late spouse, civil partner or cohabiting partner, for at least 1 tax year post-1975, must have paid enough Class 1 or 2 National Insurance contributions with an earnings factor at least 25 times the lower earnings limit. In this case, Mrs Ali’s National Insurance record shows that she paid 23 Class 1 National Insurance contributions in the 2004/05 tax year, and that this was the only tax year in which she worked and paid contributions. This was not enough to satisfy the contribution condition and the SSWP therefore did not allow the respondent’s claim for BSP, made on 24/10/2022. This fact that sufficient NICs were not made in any one tax year to meet the BSP qualifying condition was not disputed.

The respondent’s late wife was credited with National Insurance credits from tax year 2005/06 until her death in October 2022. (FtT Statement of Reasons (SoR) at ¶3.5). The FtT purported to apply the decision of the High Court in R -v- SoS Ex-parte Jwanczuk [2022] EWHC 2298 (Admin) and awarded BSP to Mr Ali.

In purporting to apply the High Court decision in Jwanczuk, the FtT decided that “the Appellant's late wife's credited National Insurance payments must be considered along with her paid contributions”. (SoR ¶21). The Jwanczuk High Court decision, however, did not involve the payment of NICs, and instead read an exception into the legislation that imposed the contribution condition, the exception being one for someone who was unable to work during their entire working life due to a disability. Nevertheless, the Jwanczuk decision was reversed on appeal in the Supreme Court, as discussed below.

In Jwanczuk, the SSWP appealed against the Court of Appeal’s decision which entitled the respondent, Mr Jwanczuk, to BSP. The Court of Appeal in England had followed the Northern Ireland Court of Appeal’s decision in O’Donnell v Department for Communities [2020] NICA 36 (O’Donnell). In O’Donnell, it was held that the existing legislation in Northern Ireland that provided the contribution condition for BSP, was incompatible with Article 14 of the European Convention on Human Rights (ECHR) and unlawfully discriminated against surviving spouses, civil partners or cohabiting partners of those who could not work due to disability.

The Supreme Court allowed the SSWP’s appeal on 20/11/2025, ruling that Mr Jwanczuk was not entitled to BSP as the contribution condition was not satisfied. They concluded as follows:

In their ruling, the Supreme Court considered Mr Jwanczuk’s ground that he had been unlawfully discriminated against because of a failure to treat his situation differently due to his wife’s disability. The Supreme Court determined that, in being refused BSP on the grounds of the contribution condition not being satisfied, he had been treated in the same way as any other widower whose late spouse had not paid National Insurance. They further explained that a failure to treat differently a person in different circumstances, without justification, could amount to a breach of Article 14 of the ECHR.

In determining whether there was an objective and reasonable justification to apply the contribution condition in Mr Jwanczuk’s case and treat him in the same way as those whose partners were not disabled, the Supreme Court (Jwanczuk at ¶121) considered the “Bank Mellat questions” raised by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700. Thefour questions are:

To decide if the above “Bank Mellat questions” were satisfied, the Supreme Court assessed the objectives of the contribution condition put forward by the SSWP. The objectives put forward were (as summarized in the Jwanczuk Press Summary and as discussed generally in the Jwanczuk decision at ¶¶128-137):

The Supreme Court were satisfied that the three aims or objectives presented by the SSWP were “legitimate and rationally connected to the imposition of the contribution condition”. (¶137) They were also satisfied that “the contribution condition is justified and strikes the necessary fair balance in this case”. (¶137) The test for objective and reasonable justification in the “Bank Mellat questions” was therefore satisfied. See generally Jwanczuk at ¶¶138-153.

In summary, the SSWP did not unlawfully discriminate against Mr. Jwanczuk in violation of Article 14 of the ECHR by applying the same conditions of entitlement to BSP to him as others and by not making an exception for those claimants whose spouses could not meet the contribution conditions throughout their working lives due to a disability.

The Jwanczuk Supreme Court decision is dispositive of the case at hand. The respondent’s late wife did not satisfy the contribution condition for BSP, as she did not pay sufficient Class 1 or Class 2 national insurance contributions in any one tax year in her working life to meet the contribution conditions for BSP. Respondent alleges this was due to her inability to work because she was disabled. The decision of the SSWP to disallow his claim for BSP on these grounds did not unlawfully discriminate against him, and it was correct to treat him in the same way as any other BSP claimant whose deceased spouse, civil partner or cohabiting partner did not pay the required amount of contributions.

I respectfully submit that the decision of the FtT to allow Mr Ali’s appeal and award BSP was an error of law in light of the Supreme Court’s judgment in Jwanczuk. For this reason, I respectfully request that the decision of the First-tier Tribunal on 07/12/2023 be set aside and the matter be re-determined under section 12(2) of the Tribunal, Courts and Enforcement Act 2007.”