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Family of disabled NI woman Pauline O'Donnell 'discriminated' over bereavement payments, court rules

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The Department failed to justify the similarity in treatment of those with and without severe disabilities, the court held (stock photo)

The Department failed to justify the similarity in treatment of those with and without severe disabilities, the court held (stock photo)

The Department failed to justify the similarity in treatment of those with and without severe disabilities, the court held (stock photo)

The family of a severely disabled woman in Northern Ireland were discriminated against by the refusal of bereavement payments following her death, the Court of Appeal has ruled.

Senior judges found no justification for denying the benefit to Pauline O'Donnell's husband and children because she was never able to work and make National Insurance contributions.

They held that provisions within the Pensions Act (Northern Ireland) 2015 are incompatible with human rights law.

Mrs O'Donnell was diagnosed with Friedreich's Ataxia, a progressive degenerative disorder, when she was 12.

She went on to marry her husband Michael in 1995, with the couple having four children together.

In July 2017 she died at the age of 41 due to cardiac issues associated with her condition.

The Department for Communities declined Mr O'Donnell's application for Bereavement Support Payments (BSP) on the basis that his late wife had not paid enough National Insurance.

The widower appealed to a tribunal, claiming the condition amounted to unlawful indirect discrimination towards him and the couple's children, contrary to Article 14 of the European Convention on Human Rights (ECHR).

Mrs O'Donnell's disabilities meant she could never work and therefore could not pay the necessary National Insurance contributions, it was contended.

The case was referred to the Court of Appeal to determine if the Act is incompatible with human rights legislation.

Judges identified a failure to differentiate between those in contrasting circumstances.

"The deceased, who as a result of disability could not work and could never meet the contribution condition, was treated in exactly the same way as an individual who could work and who could meet the contribution condition but did not do so," Lord Justice Stephens said.

"This means that the appellant and his children have been treated in the same way as others whose situation was significantly different by reason of the disability of the deceased."

He added: "The discrimination is by comparison to non-disabled persons."

The Department failed to justify the similarity in treatment of those with and without severe disabilities, the court held.

Lord Justice Stephens described the contributory policy for those unable to work throughout their life due to disability was "manifestly without reasonable foundation".

With the current provisions found to be inadequate, he said the BSP contribution condition is to be treated as met if the deceased was unable to comply with the relevant section throughout working life due to disability.

"Reading and giving effect to the 2015 Act in this manner means that it is compatible with Article 14 ECHR," the judge concluded.

Belfast Telegraph