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Cohabiting partner wins pension fight in Supreme Court

Nomination requirement added nothing to evidential hurdle concerning cohabiting relationship

The Supreme Court has unanimously allowed an appeal by Denise Brewster and declared that the requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 that the appellant and her late partner, William McMullan, should have made a nomination to the pension scheme should be disapplied. As a consequence, Ms Brewster will be entitled to receive a survivor's pension under the scheme.

In In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8 Lord Kerr gave the judgment, with which the other Justices agreed.

This case concerns a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the "2009 Regulations") that unmarried cohabiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor's pension. The survivor must also show that he or she has been a cohabitant for two years before the date on which the member sent the nomination and has been in that position for two years before the date of death. There is no similar nomination requirement for married or civil partner survivors. The Department of the Environment of Northern Ireland (DENI) included a nomination requirement in the 2009 Regulations in order to ensure "parity" with other local government pension schemes in Scotland and England and Wales, which at the time had similar requirements.

The appellant, Denise Brewster, lived with her partner, William McMullan, for around ten years before December 2009. On Christmas Eve that year, they became engaged. Mr McMullan died two days later. At the time of his death, Mr McMullan was employed by Translink, a public transport operator, for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the Local Government Pension Scheme (the scheme). Ms Brewster believed that Mr McMullan had completed a form in which he nominated her to be eligible for a survivor's pension, but the Northern Ireland Local Government Officers' Superannuation Committee (NILGOSC), which administers the scheme, says it did not receive any form. Accordingly, NILGOSC refused to pay her a survivor's pension.

Ms Brewster applied for a judicial review of this decision. The High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with article 1 protocol 1 (peaceful enjoyment of possessions) ("A1P1"). The Court of Appeal allowed the respondents' appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied to the Court of Appeal for her appeal to be re-opened. Her application was refused and she now appeals to the Supreme Court.

The Supreme Court has unanimously allowed Ms Brewster's appeal and declares that the requirement in the 2009 Regulations that the appellant and Mr McMullan should have made a nomination be disapplied; and that the appellant is entitled to receive a survivor's pension under the scheme.

The parties are agreed that a survivor's pension, as a "possession", falls within the ambit of A1P1 and that the appellant, as a surviving unmarried cohabiting partner, enjoys a relevant status for the purpose of article 14 and is in an analogous situation to a surviving married partner or civil partner [44-47]. The only issue, therefore, is whether the interference with the appellant's right to property has been "objectively justified". The starting point in assessing justification must be the duty of the state under article 14 to "secure" the appellant's right to equal treatment. The duty to secure rights calls for a more proactive role than the requirement to respect rights. The question of justification must be assessed objectively, but the court should not substitute its view for that of the decision-maker, particularly in matters of socio-economic policy [49].

According to DENI, the objective behind the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership and identify the wishes of the scheme member [29]. The 2009 Regulations, however, already require a surviving partner to establish that a genuine and subsisting relationship existed, so the nomination requirement adds nothing to this evidential hurdle. The confirmation of the member's wishes has no intrinsic value [31]. Although the status of cohabitation is not an immutable characteristic but a matter of choice, this was not a factor that was considered by the decision-maker [59]. The desirability of establishing a 'bright-line rule' is also of marginal significance in this case, as no thought was given to the possible difficulties with administration that might arise if the nomination procedure was not included and no evidence was produced that it would cause significant problems in administering the scheme, particularly as in England and Wales it is considered that the nomination procedure is not necessary [62]. Given DENI's acceptance that the provision of a survivor benefit engages A1P1 and that the appellant has the requisite status to rely on article 14, the objective behind the nomination requirement must have been to eliminate unwarranted differences of treatment between married or civil partner survivors on the one hand and unmarried long term partners in a stable relationship on the other [34].

When it comes to general measures of economic or social strategy, the court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation" [53-55]. Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished [64]. A matter is not immune from review purely on account of coming within the realm of social or economic policy - it must be shown that a real policy choice was at stake. In the present case, not only were socio-economic factors not at the forefront of the decision-making process, but the attempt to justify retention of the procedure was characterised by general claims, unsupported by concrete evidence and disassociated from the particular circumstances of the appellant's case [65]. There is 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 and therefore its discriminatory effect cannot be justified [67].

Supreme Court press summary

Rayner Grice
, a partner specialising in Family Law with Clarke Willmott LLP, commented:

"There is a lot of discussion regarding the need for the current law regarding cohabitees' rights to be amended so that cohabiting couples are afforded the protection that comes automatically to married couples. Many couples choose not to wed, others can't afford to. There are competing moral views but the truth remains that cohabitation doesn't afford people the same rights in law as married couples. The question must be whether that needs to change, particularly for cohabiting families with children who have needs that require protection.

"Currently claims between cohabiting couples are limited either on death or relationship breakdown and generally people are unaware that their rights are limited as the myth of the common-law husband or wife still prevails.

"Today's decision will be seen as quite a move forward as currently most pension schemes don't allow a cohabiting partner to benefit, although there is no issue if you are married. Pension is a key area of concern, and the Supreme Court's decision may well lead to pension schemes altering their policies to ensure that on death there is protection for the surviving partner. 

"It is hoped that this case might prompt the Government to move more proactively in modernising the law for cohabiting couples, who are currently the fastest-growing family type in the UK, currently numbering some 3.3 million."

Graeme Fraser, Chair of Resolution's Cohabitation Committee, said:

"[This] Supreme Court decision is highly significant for millions of unmarried couples in the UK in being placed on a fairer footing. It is hoped that this decision will pave the way for further recognition of their family rights and needs not only by the Courts but by Parliament.

"As the fastest growing family type in the UK, it's crucial that these 3.3m cohabiting couples, alongside any children they may have, are provided considerably greater legal protection. Otherwise, as things stand, they are left vulnerable on the death of their partner or on relationship breakdown – hopefully [the] verdict paves the way for this to change."

For the full judgment, click here.

8/2/17 (supplemented 9/2/17)