Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions: HL 5 May 2005

Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The Secretary’s appeal succeeded. Section 6 of the 1998 Act permitted the discrimination as an existing arrangement. The discrimination had been objectively justified, and involved no infringement. The widow’s pension was in effect now a dead letter, and the question was only as to whether it had not been stopped quickly enough.
Lord Hoffmann said that section 6(2)(b) of the 1998 Act: ‘assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention-compliant in accordance with section 3’.


Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood


[2005] UKHRR 717, [2005] UKHL 29, Times 06-May-2005, [2005] 1 WLR 1681, [2005] 2 FCR 183, [2006] 1 All ER 487, [2005] Pens LR 337, [2005] HRLR 21


Bailii, House of Lords


Social Security Contributions and Benefits Act 1992, Human Rights Act 1998 6, European Convention on Human Rights 8 14


England and Wales


Appeal fromHooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 18-Jun-2003
The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal . .
CitedWillis v The United Kingdom ECHR 11-Jun-2002
Discrimination in the payment of ‘widows payment’ and widowed mother’s allowance infringed the rights conferred by article 14 read with article 1 of Protocol 1 but no finding was made about the widow’s pension. The risk of the applicant being . .
CitedC. Razzouk Et A. Beydoun v Commission Of The European Communities ECJ 20-Mar-1984
The case concerned survivors’ pensions under the Community’s own Staff Regulations.
Held: The principle of equal treatment of men and women ‘forms part of the fundamental rights the observance of which the court has a duty to ensure.’ Article . .
At first instanceHooper and others v Secretary of State for Work and Pensions Admn 14-Feb-2002
The claimants alleged that the way they were treated as widowers under the benefits subjected them to discrimination.
Held: The continued payment of widow’s pension was objectively justified. . .
CitedS, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
CitedAttorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
CitedRelating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
CitedParochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
CitedKjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedWalden v Liechtenstein ECHR 16-Mar-2000
The Liechtenstein constitutional court had held that the unequal pension treatment afforded to married and unmarried couples was unconstitutional. The constitutional court did not set aside the existing legislation, given the practical difficulties . .
CitedCornwell v United Kingdom; Leary v United Kingdom ECHR 25-Apr-2000
Mr Cornwell’s wife had died on 24 October 1989, leaving a dependent child. On 7 February 1997 his representative had ‘contacted’ the Benefits Agency to enquire about widow’s benefits. On 14 February 1997 the Agency ‘answered’ to say that legislation . .
CitedRasmussen v Denmark ECHR 28-Nov-1984
Article 14 requires a complainant of discrimination to show that the complaint falls within the ‘ambit’ of some substantive Convention right. . .
CitedWilkinson, Regina (on the Application Of) v Inland Revenue HL 5-May-2005
The claimant said that the widows’ bereavement tax allowance available to a wife surviving her husband should be available to a man also if it was not to be discriminatory.
Held: Similar claims had been taken before the Human Rights Act to the . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
CitedWilkinson v Commissioners of Inland Revenue Admn 14-Feb-2002
The case concerned the differential tax treatment between men and women, which granted to widows a tax allowance that was not granted to widowers.
Held: The court made a ‘declaration of incompatibility’ pursuant to section 4. 1(1) of the TMA . .
CitedRegina v Secretary of State for the Home Department Ex parte Anderson HL 25-Nov-2002
The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
CitedHampson v Department of Education and Science CA 1989
Balcombe LJ said: ‘In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.’ The task of the Tribunal hearing such a complaint is . .
CitedFriends Provident Life and Pensions Limited v The Secretary of State for Transport, Local Government and Regions and Others Admn 30-Oct-2001
The application of the House of Lords’ ruling in Alconbury that the exercise of the section 77 call in power was not after all incompatible with article 6, it was unsuccessfully argued instead that a refusal to call in a planning application under . .

Cited by:

CitedWilkinson, Regina (on the Application Of) v Inland Revenue HL 5-May-2005
The claimant said that the widows’ bereavement tax allowance available to a wife surviving her husband should be available to a man also if it was not to be discriminatory.
Held: Similar claims had been taken before the Human Rights Act to the . .
CitedFrancis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedGC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
CitedNew London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .
CitedDA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.

Benefits, Discrimination, Human Rights

Leading Case

Updated: 07 February 2022; Ref: scu.224574