Cohabitee wins right to pensionTuesday, February 21, 2017
In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland)
The Supreme Court has ruled that a nomination requirement relating to the payment of a survivor’s pension under a public sector pension scheme discriminated against cohabiting unmarried couples and should be disapplied.
Ms Brewster and her partner Mr McMullan had cohabited for approximately 10 years and had bought a home together. Mr McMullan died unexpectedly two days after the couple had got engaged.
Mr McMullan had been an active member of the Northern Ireland Local Government Pension Scheme (“Northern Ireland LGPS”). The 2009 regulations governing the Northern Ireland LGPS (the Regulations”) provided that a cohabiting partner was eligible to receive a survivor’s pension. However, in order to qualify the cohabiting partner must have been nominated by the member prior to the member’s death. The Regulations provided that a member (A) may nominate another person (B) to receive benefits under the Northern Ireland LGPS by giving the Committee (the body administering the Northern Ireland LGPS) a declaration signed by both A and B that the following condition has been satisfied for a continuous period of at least two years which includes the day on which the declaration is signed.
The condition is that:
• A is able to marry, or form a civil partnership, with B;
• A and B are living together as if they were husband and wife or as if they were civil partners;
• Neither A nor B is living with a third person as if they were husband and wife or as if they were civil partners; and
• Either B is financially dependent on A, or A and B are financially interdependent.
The nomination has no effect if the condition has not been satisfied for a continuous period of at least two years which includes the day on which the declaration is signed.
At the time of death Mr McMullan had not made a nomination and although Ms Brewster met the condition, the Northern Ireland LGPS declined to pay her the survivor’s pension in the absence of a valid nomination.
The Supreme Court’s Decision
Ms Brewster applied for judicial review of the decision not to pay her a survivor’s pension, claiming that the requirement of a nomination for unmarried partners constituted unlawful discrimination and breached her rights under the European Convention on Human Rights (ECHR). The Northern Ireland High Court agreed. However, this decision was overturned in the Northern Ireland Court of Appeal which ruled that the nomination requirement was neither unjustified nor disproportionate.
Following the High Court decision, the equivalent regulations in the local government pension schemes in England, Wales and Scotland were amended to remove the nomination requirement. This prompted Ms Brewster to apply for her appeal to be reopened. This was refused, but she was granted leave to take her case to the Supreme Court.
The Supreme Court found that the imposition of the nomination requirement was discriminatory and unjustified and should be disapplied and that Ms Brewster was entitled to receive the survivor’s pension under the Northern Ireland LGPS.
It was argued that the objective of the procedural requirements under the Regulations was to establish the existence of a long-standing cohabiting relationship equivalent to marriage or civil partnership and to identify the wishes of the scheme member. While the Court understood this objective, it did not explain the need for a nomination, as the surviving partner would still need to provide evidence that she satisfied the condition in the Regulations.
The Court found that there was no rational connection between the objective, which was to remove the difference of treatment between a longstanding cohabitant and a married or civil partner, and the imposition of the nomination requirement.
The results of this case could have wider impact for cohabiting partners in other public sector pension schemes, although the rules of the local government schemes in England, Wales and Scotland have already been amended to remove the nomination requirement.
Private sector pension schemes are at liberty to set the conditions that apply to survivor benefits, including the evidence required to demonstrate cohabiting relationships. However, in light of this case trustees should review their rules and member literature to identify and address any potential problems, particularly in the use of nomination forms.
The training session was very good – pitched just right in terms of our knowledge levels.
Trustee - Pension Scheme