What treatment should the appellate courts of England and Wales, Northern Ireland and Scotland accord one another’s decisions on issues of statutory construction? This was the important constitutional question answered by the Supreme Court in R (on the application of Jwanczuk) v Secretary of State for Work and Pensions [2025] UKSC 42, a landmark judicial review concerning social security legislation handed down on 20 November 2025. The judgment provides authoritative guidance on cross-jurisdictional precedent – an issue of considerable practical importance given the UK’s devolved legal systems – and addresses the compatibility of certain benefits requirements with human rights law.
This article unpacks everything you need to know about the case.
Background
The Bereavement Support Payment (“BSP”) is a non-means-tested contributory benefit under the Pensions Act 2014 which is payable to the surviving spouse or partner of a person who dies, provided certain conditions set out in sections 30 and 31 of the Pensions Act 2014 are met. One such condition requires that for at least one tax year during the deceased’s working life, they paid the relevant national insurance contributions (the “Contribution Condition”).
The respondent, Mr Jwanczuk, applied for BSP following the death of his wife in 2020. The respondent’s wife suffered from a degenerative condition which rendered her severely disabled and unable to work during her lifetime. The Department for Work and Pensions refused Mr Jwanczuk’s application on the basis that the respondent’s wife had not paid the relevant national insurance contributions and the Contribution Condition had therefore not been satisfied.
Mr Jwanczuk brought a claim for judicial review, arguing that, given his wife was unable to work because of her disability, the Contribution Condition was unlawfully discriminatory contrary to Article 14 of the European Convention for the Protection of Human Rights (the “Convention”) read with Article 1 of Protocol 1 (“A1P1”), the right to enjoyment of one’s possessions. 1 He relied on the Northern Ireland Court of Appeal’s decision in O’Donnell v Department for Communities [2020] NICA 36 (“O’Donnell”), which determined that the Contribution Condition in equivalent Northern Ireland pensions legislation unlawfully discriminated against the surviving spouse or partner of a deceased person who had been unable to work due to their disability. The Northern Ireland Court of Appeal read down the relevant Contribution Condition provision such that it was treated as met if the deceased had been unable to meet the relevant threshold for national insurance contributions due to disability.
Issues for the Supreme Court
Mr Jwanczuk succeeded before the High Court (of England and Wales), which followed O’Donnell in finding that the Contribution Condition was unlawfully discriminatory contrary to A1P1 read with Article 14. The Court of Appeal, despite expressing doubts as to aspects of the decision, similarly found in favour of the respondent, reasoning that it should follow O’Donnell unless there were compelling reasons to depart from it.
1The respondent’s original discrimination claim also relied on Article 14 read with Article 8, concerning the right to privacy and family life. However, as the Secretary of State contested the relevance of Article 8 to the claim, ultimately it was determined that it was unnecessary to the determination of the claim and was therefore not considered by the Supreme Court (see [28]).
The Secretary of State for the Department for Work and Pensions appealed the decision on multiple grounds, which the Supreme Court distilled into two main issues:
- What is the treatment due by appellate courts in one UK jurisdiction of decisions from another UK jurisdiction regarding similar or materially identical legislation?
- Did the Contribution Condition unlawfully discriminate against Mr Jwanczuk contrary to Article 14 of the Convention?
(1) The approach to cross-jurisdictional precedent
The Secretary of State argued that the Court of Appeal erred in failing to depart from O’Donnell if, on its own analysis, it considered that the Contribution Condition was not unlawfully discriminatory.
The Supreme Court confirmed that while decisions of appellate courts in each of England and Wales, Northern Ireland and Scotland are not binding on one another as a matter of legal precedent, generally they will be treated as persuasive authority when a similar legal point arises in one of the other jurisdictions. A stricter approach has been adopted in respect of revenue law, where, given the particular importance of ensuring that the incidence of taxation is uniform throughout the UK, it has been held that previous decisions of courts in coordinate jurisdictions should be followed “unless there are compelling reasons to the contrary”.2 Notwithstanding that the case was not concerned with revenue law, the Court of Appeal argued that this approach should be adopted more widely, noting the minimum requirement must be that the first court’s decision was “clearly wrong, where the word ‘clearly’ connotes a heightened threshold”.3 On this basis, the Court of Appeal did not consider that it could refuse to follow O’Donnell.
The Supreme Court disagreed, finding that there was no justification for expanding the scope of the strict approach beyond the interpretation of revenue statutes. The Court of Appeal was therefore required to depart from O’Donnell if it considered the decision was wrong. The Supreme Court clarified that outside the realm of revenue law, “as a matter of pragmatic good sense”,4 UK appellate courts should treat one another’s decisions with great respect, but should not regard themselves as being bound to follow a decision which is wrong or required to identify any exceptional circumstance or “compelling reason” to justify departing from such a decision. Rather, the courts should identify clearly why they consider the prior decision to be incorrect and grant leave to appeal to the Supreme Court so that the inconsistent interpretations may be resolved. The Supreme Court reasoned that while avoiding inconsistent interpretations in different jurisdictions was important, it was “more important that statutory provisions should be interpreted correctly than that they should be interpreted consistently”.5
(2) Unlawful discrimination
Article 14 requires that the Convention rights be secured without discrimination on grounds such as sex, race, colour or “other status”. The Supreme Court accepted that being the surviving partner of a person with a lifelong inability to work was a relevant “other status”, noting that the status was more than a mere description (as the Secretary of State had argued) even though it might not have had any significance outside the context of the Contribution Condition.
Turning to the issue of the alleged discrimination, the Supreme Court then considered whether the failure to make an exception from the Contribution Condition for a person in the respondent’s position was objectively and reasonable justified, applying the test in Bank Mellat v HM Treasury (No 2) [2013] UKSC.
The Secretary of State argued that the Contribution Condition had three aims:
- Encouraging people to work to make the contributions needed to obtain contributory benefits;
- Simplifying the benefit system to reduce administrative cost and complexity; and
- Ensuring certainty in understanding benefit entitlements.
The Supreme Court accepted that these aims were “legitimate and rationally connected to the imposition of the contribution condition” and that the Contribution Condition struck the necessary balance.6 Parliament should be awarded the widest margin of appreciation in cases which concern policy choices about the allocation of public resources, and while disabled persons do face an increased level of vulnerability, the Court did not accept that there was a connection between disability and disentitlement to BSP that increased the scrutiny required by the Court in this case.
Instead, the Court found that there were good reasons for Parliament legislating a “bright line rule” in respect of BSP which allowed for certainty, consistency and quick administration.7 It also accepted that if the exception sought by the respondent was made available, it would have “undermined the basic contributory principle that BSP should only be available to those who have actually paid the minimum prescribed contributions”.8
On this basis, balancing the severity of the effect on Mr Jwanczuk against the importance of the objectives pursued (including that of the contribution principle), the Court was satisfied that the former was outweighed by the latter and that the failure to make the exception available was therefore justified.
Implications for future judgment
The Supreme Court’s decision provides welcome clarification on a question of considerable constitutional importance, the answer lying in principles of pragmatism and common sense. While the outcome may appear harsh for bereaved spouses such as the respondent, the decision affirms that in matters of welfare policy, which involve difficult decisions about the allocation of public resources, the Court will afford Parliament a wide margin of appreciation. Indeed, the judgment concludes with a reminder of the importance of preserving the constitutional balance between the judiciary and the legislature in matters of social and economic policy, the Supreme Court noting that “the risk of undue interference by the courts in the sphere of political choices made by the legislature in the welfare context can only be avoided if the courts respect the boundaries between legality and the political process”. 9
For further information, please contact:
Alex Fawke, Linklaters
alex.fawke@linklaters.com
- Abbott v Philbin [1960] Ch 27; [1961] AC 352, p. 49.
- R (Jwanczuk) v Secretary of State for Work and Pensions [2022] EWCH 2298 (Admin)
- at [44].
- at [100].
- at [94].
- at [137].
- at [147].
- at [148].
- at [160].
