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Survivors pensions for co-habiting couples

A recent judicial review considered differences in treatment applied to married and co-habiting couples in relation to survivor's benefits and found the position to be unfair.

On the 8th of February 2017, the Supreme Court handed down its judgement in the matter of an application for Judicial Review by Denise Brewster (Northern Ireland).

Case details

The case concerned a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (the "Regulations") that unmarried co-habiting partners be formally nominated in order to be eligible for a survivor's pension. Under the Regulations, no similar nomination requirement existed for those who are married or are in a civil partnership. 

The pursuer, Denise Brewster, had been cohabiting with her partner William Leonard McMullan for around 10 years before his death in 2009. At the time of his death, Mr McMullan was employed by a public transport operator and had been a member of the Local Government Pension Scheme (the "Scheme") for some 15 years. In the absence of a completed nomination form, the committee responsible for administering the Scheme refused to pay Ms Brewster a survivor's pension.

Ms Brewster sought a judicial review of the Scheme's decision. The High Court held that the requirement constituted unlawful discrimination, contrary to Article 14 of the European Convention on Human Rights when read in conjunction with Article 1 of the First Protocol (which provides for the peaceful enjoyment of possessions). The Court of Appeal later rejected these points, finding that the nomination requirement was neither unjustified nor disproportionate.

Meanwhile the equivalent regulations in England and Wales and Scotland were amended to remove the nomination requirement for unmarried couples, prompting Ms Brewster to apply to the Court of Appeal for her case to be reopened. When her application was refused, Ms Brewster appealed to the Supreme Court.

The outcome

The Supreme Court unanimously allowed Ms Brewster's appeal, declaring that the nomination requirement should be disapplied and that Ms Brewster was entitled to receive a survivor's pension.

The Court noted that the intention of the Regulations must have been to eliminate the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member, and found that there was no rational connection between this objective and the imposition of the nomination requirement. 

Author: Sarah Donnelly

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Colin Greig

Partner

I have extensive experience of providing clear, practical advice to employers, trustees of pension arrangements, institutions and individuals on a wide range of pensions issues.