The claimant was a woman who had been in a long-term relationship with her male partner, who had died in 2016. The claimant made a claim for bereavement benefits under sections 36 and 39B of the Social Security Benefits and Contributions Act 1992 (“the 1992 Act”). The Secretary of State refused that claim on the grounds that the claimant had not been married or in a civil partnership. The background was that after 2014 homosexual couples could enter a civil partnership, and could get married, but heterosexual couples could only get married. It had now been recognised that that position was discriminatory, and that had been remedied by legislation. The claimant nevertheless asked the court to make a declaration that sections 36 and 39B of the 1992 Act were incompatible with her Convention rights. Sections 36 and 39B had been largely repealed, but were still in force, pursuant to transitional provisions, and for very limited purposes. The claimant appealed against the refusal of her claim. Her appeal was heard by the Upper Tribunal (Administrative Appeals Chamber), which dismissed the appeal holding that it had no jurisdiction to make a declaration of incompatibility. The claimant appealed.

On the appeal—

Held, appeal dismissed and no declaration of incompatibility made. Sections 36 and 39B of the 1992 Act, to the ghostly extent to which they were still in force, did not discriminate against the claimant contrary to article 14 of the Convention on Human Rights read with article 1 of Protocol 1 or with article 8. In any event, the difference in treatment identified was justified. If for any reason that conclusion were wrong, it was in any event inappropriate for the court to exercise its power to make a declaration of incompatibility (paras 80–81, 82–86, 92, 93, 94–95).