The Bereavement Benefits (Remedial) Order 2023 came into force on 9th February 2023 and extends eligibility to Bereavement Support Payment (BSP) and Widowed Parent’s Allowance (WPA) to cohabiting couples with children. Previously, only surviving partners who were in a ‘legal union’ (i.e. married or in a civil partnership) could receive these benefits.
From 9th February 2023, individuals who were living with their partner and entitled to Child Benefit, or pregnant, when their partner dies will be able to claim the higher rate Bereavement Support Payment (assuming they meet the other eligibility criteria).
But the Order also has retrospective effect from 30th August 2018 – as this was the date on which the Supreme Court ruled that the existing legislation was unlawful. This means that claims can be made for deaths that happened before 9th February 2023. This article will focus on these retrospective claims.
We’ll look at some basic questions before looking at the eligibility rules in more detail.
Who can now claim bereavement benefits?
A surviving partner will be entitled to bereavement benefits if they were under State Pension age at the time of their partner’s death and their partner either met the National Insurance contributions condition (for the benefit they are claiming) or died as a result of a workplace accident or disease caused by their employment.
Although Widowed Parent’s Allowance was replaced by Bereavement Support Payment, it can still be claimed for deaths that occurred before 6th April 2017. The two benefits have slightly different eligibility criteria – see below for more details.
Who can make a retrospective claim?
Retrospective claims can be made by surviving partners who were not entitled to Widowed Parent’s Allowance/Bereavement Support Payment when their partner died as they were not in a legal union (i.e. marriage / civil partnership), but would have been had these rules been in place (i.e. they were living with their partner, entitled to Child Benefit and met the other eligibility criteria – see below for more details).
Successful claimants will receive payments for any period beginning on or after 30th August 2018 (when the Order comes into force) for which they would have been entitled to a bereavement benefit (i.e. no payments can be made in respect of an earlier period even if the death occurred before this).
EXAMPLE
Donald was living with his partner Chantelle and their child when Chantelle died in 2017. At the time Donald looked into claiming bereavement benefits but was told that they were only for married couples. However, these new rules mean that Donald will be able to make a retrospective claim for bereavement benefits for any period after 30th August 2018 in which he would have been entitled had the rules been place.
What if they don’t have children?
The rule change only applies to cohabiting couples with children. Couples who are not in a legal union (marriage / civil partnership) and do not have children, will not be entitled to bereavement benefits.
Is there a time limit for making a retrospective claim?
To receive the full amount they are entitled to, they need to claim within 12 months of the Order coming into force (i.e. before 9th February 2024). For Bereavement Support Payment, they could still receive some payment if they claim within 21 months (i.e. before 9th November 2024) but this will depend on when their partner died.
How will a retrospective award affect the claimant’s benefits?
Any retrospective payment they receive will be treated as capital and ignored for 52 weeks / 12 months for Universal Credit, Housing Benefit, Income Support, Income-Related ESA and Income-Based JSA. It will not be treated as income in the period for which it is being paid so will not affect their previous entitlements. For Tax Credits, Bereavement Support Payment is ignored but Widowed Parent’s Allowance is treated as pension income for the tax year in which it is received.
If a claimant is entitled to ongoing payments, their benefits will be affected as usual – Bereavement Support Payment is ignored but Widowed Parent’s Allowance is treated as income (with a £15pw disregard for HB and £10pw disregard for IS/IR-ESA/IB-JSA).
Note – it could affect support they receive with their Council Tax but they will need to check what their Local Authority’s rules are.
EXAMPLE
Daffyd receives Housing Benefit and Tax Credits. He has made a successful retrospective claim for Widowed Parent’s Allowance and is entitled to a backpayment of £3000 and ongoing payments of £120 a week. The £3000 will be ignored as capital for 52 weeks and will not affect his Housing Benefit but will be classed as pension income for his Tax Credits. The £120 weekly payments will be classed as income for both Housing Benefit (with £15 disregard) and Tax Credits.
What if someone else is already getting bereavement benefits for the deceased person?
Usually, only one claimant can receive bereavement benefits in respect of a deceased person. However, there are Transitional Provisions in place that allow an existing claim under the old rules to co-exist with a claim under the new rules.
EXAMPLE
Megan separated from her husband, Costas, but they did not divorce. Megan had main custody of their two children and so was receiving Child Benefit. Costas was living with a new partner, Dani, and her child when he died in 2015. Under the rules at the time, as the person in a legal union with him, Megan made a claim for Widowed Parent’s Allowance and is still receiving payments. These new rules mean that because Dani was living with Costas and receiving Child Benefit when he died, she can now make a claim for Widowed Parent’s Allowance – this will not affect Megan’s entitlement.
NOTE: It doesn’t matter that the child that Dani/Costas was receiving Child Benefit for at the time of his death was not his biological child.
Widowed Parent’s Allowance - Deaths before 6th April 2017
Where someone makes a successful retrospective claim, they can receive a back payment of Widowed Parent’s Allowance (WPA) for any period in which they remained entitled to WPA after 30th August 2018.
The rate at which WPA is paid depends on their late partner’s age when they died, and NI contribution history.
A surviving partner could now be entitled to Widowed Parent’s Allowance if:
- Their partner met the National Insurance contribution condition, and
- They were living with their partner when they died, and
- They or their partner were entitled to Child Benefit or pregnant when their partner died, and
- They were under State Pension age when their partner died.
They will receive retrospective payments for any period after 30th August 2018 in which all the following apply:
- They were entitled to Child Benefit for a ‘relevant child’*, and
- They were under State Pension age, and
- They had not formed a new legal union (i.e. marriage / civil partnership).
*A ‘relevant child’ is one for whom they were entitled to Child Benefit for, or pregnant with, when their partner died.
NOTE: For any period in which a claimant is cohabiting with a new partner the payments would be suspended.
If they are still entitled on the date they make their claim, they will receive ongoing payments.
IMPORTANT
If a claimant is receiving Tax Credits, they should speak to a Benefits Adviser before making a retrospective claim for Widowed Parent’s Allowance as any payment will be treated as pension income.
To receive the retrospective payments (and any ongoing entitlement) claimants need to make their claim before 9th February 2024.
EXAMPLES
Laura (28) was pregnant when her partner, Craig, died on 15th December 2016. The couple lived together but were not married or in a civil partnership. Craig was employed and so paid NI contributions. Laura will be able to make a retrospective claim for WPA. She will receive a back payment of her entitlement from 30th August 2018 and will remain entitled to ongoing payments of WPA until she reaches State Pension age, stops being entitled to Child Benefit for a ‘relevant child’* (as her child is currently six, this could be another 12 years) or moves in with a new partner.
Viresh (40) lived with his partner, Myra, and their two young children when Myra died on 5th October 2010. Myra had been employed and paying National Insurance contributions. Viresh moved in with his new partner, Tara, on 3rd June 2020. He will be entitled to a retrospective payment of WPA for the period between 30th August 2018 and the date he moved in with Tara as he remained entitled to Child Benefit and was still below State Pension age. As he is cohabiting with a new partner, Viresh’s entitlement to WPA is currently suspended but could be reinstated if he separates from Tara whilst still under State Pension age and receiving Child Benefit for a ‘relevant child’.
Rose (39) lived with her partner, Kier, and their 11-year-old son when Kier died in 2012. Rose moved in with a new partner in 2016 and gave birth to their child that year. They separated in 2019 and a few months later, her eldest son finished education in 2019 so Rose stopped receiving Child Benefit for him. Rose was technically entitled to WPA on 30th August 2018 but she would not receive any payments as she was living with a new partner. She will receive retrospective payments for the period between her separation in 2019 and Child Benefit for her eldest son (the ‘relevant child’) ending.
Bereavement Support Payment – deaths on or after 6th April 2017
Bereavement Support Payment works differently to Widowed Parent’s Allowance as it consists of a first payment of £3,500* and then up to 18 monthly payments of £350* and cannot be paid for any period over 18 months after the partner’s death. To be entitled to that first large payment, claims usually need to be made within 12 months of the partner’s death. For retrospective claims, claimants will be entitled to the £3,500 if their partner died on or after 30th August 2018 (when the order came into effect) and they make their claim before 9th February 2024. Claimants whose partner died before 30th August 2018 will not be entitled to the £3,500 payment.
* note – this is the higher rate for claimants with dependent children.
The entitlement conditions are different to WPA. A surviving partner could now be entitled to Bereavement Support Payment (BSP) if:
- their partner met the National Insurance contribution condition, and
- they were living with their partner when they died, and
- they were receiving Child Benefit, pregnant or living with a child who they would later be awarded Child Benefit for, at the time of their partner’s death, and
- they were under State Pension age at the time of their partner’s death.
The claimant does not need to remain entitled to Child Benefit to remain entitled to BSP and their entitlement does not end if they form a new legal union – they could receive up to 18 monthly payments even if they ceased to be entitled to Child Benefit the day after their partner’s death and got married soon after. However, it will end if they turn State Pension age.
NOTE: Bereavement Support Payments are totally disregarded as income for all other benefit awards. Any lump sum payment will be ignored as capital for 12 months.
Deaths between 6th April 2017 – 29th August 2018
First, let’s look at deaths that occurred between Bereavement Support Payment being introduced and the Order coming into effect (i.e. between 6th April 2017 and 29th August 2018).
NOTE: As payments of BSP cannot be made for any period before the Order came into effect or 18 months after the partner’s death, most of these claimants will receive less than 18 monthly payments and they will not receive the larger first payment of £3,500.
If they make their claim before 9th February 2024 (i.e. within 12 months of the Order taking effect) and were under State Pension age on 30th August 2018, they will receive £350 for each month after 30th August 2018 in which they remain entitled to BSP (i.e. under State Pension age) AND which is within 18 months of their partner’s death.
EXAMPLE
Jo lived with her partner, Jenna, and her two children from a previous marriage when Jenna died on 21st November 2017. Jo is not yet State Pension age. If Jo makes a claim for BSP before 9th February 2024, she will be entitled to nine monthly payments of £350. This is because she is entitled for the months between the Order coming into effect (30th August 2018) and up to 18 months after Jenna’s death (30th May 2019) – this is nine months.
Deaths on or after 30th August 2018
Next, let’s look at deaths that occurred after the Order came into effect (i.e. on or after 30th August 2018). These claimants need to have been entitled to Bereavement Support Payment on the date of their partner’s death.
If they make their claim for BSP by 9th February 2024, they will be entitled to the initial payment of £3,500 and then up to 18 payments of £350 for each month after the death that they remain entitled to BSP (i.e. under State Pension age).
If they claim BSP after 8th February 2024 but before 9th November 2024, they will not receive the payment of £3,500 but will receive £350 for each month starting three months before they made their claim in which they are entitled to BSP and which is within 18 months of their partner’s death.
EXAMPLE
Sam and Isaac lived together with their three children when Isaac died on 7th January 2022. Sam remained under State Pension age for over 18 months after Isaac’s death. If she makes her claim for BSP by 8th February 2024, she will be entitled to £3500 and 18 payments of £350.
How to claim
Claims for Bereavement Support Payment can be made online via gov.uk, over the phone or through a paper application form. Claims for Widowed Parent’s Allowance will be processed by paper. Paper applications can be downloaded from gov.uk or requested over the Bereavement Service helpline.