Unmarried cohabitant wins survivor’s pension

On 8 February, the Supreme Court unanimously ruled that an unmarried cohabitant is eligible to receive a survivor’s pension under the Local Government Pension Scheme for Northern Ireland (LGPSNI) following the death of her partner, despite not having been formally nominated by him as a potential recipient of the pension. The legislative requirement for such a nomination was considered contrary to the European Convention on Human Rights (ECHR) and should therefore be disapplied.

The background to the case is as follows. William McMullan and Denise Brewster had lived together for around ten years before December 2009. They became engaged on Christmas Eve in 2009 but, two days later, Mr McMullan unexpectedly died intestate. At the time of his death, Mr McMullan was employed by Translink, Northern Ireland's public transport operator. Throughout his employment with Translink, Mr McMullan had been a member of, and paid into, the LGPSNI.

The LGPSNI allowed for cohabiting survivors' pensions to be paid. However, in order to qualify, Mrs Brewster, as an unmarried cohabiting partner, needed to have been nominated by Mr McMullan. There was no similar nomination requirement for married or civil partner survivors. In addition, Mrs Brewster had to demonstrate that she had lived with Mr McMullan for at least two years prior to his death. The administrators of the LGPSNI said that they had not received the relevant nomination form. Mrs Brewster was therefore refused a survivor’s pension on the basis that she had not been nominated by Mr McMullan.

Mrs Brewster therefore brought an application for judicial review and the High Court ruled that the nomination requirement was incompatible with Article 14 of the ECHR (which prohibits discrimination), taken together with Article 1 of Protocol 1 (which affords the right to peaceful enjoyment of possessions). The Court of Appeal subsequently overturned that decision on the basis that the requirement was justified and proportionate. The Supreme Court has now ruled that the nomination requirement in the Regulations governing the LGPSNI should be disapplied and that Mrs Brewster should be allowed to receive a survivor’s pension under the LGPSNI.

The nub of the issue before the Supreme Court was whether the nomination requirement (which interfered with Mrs Brewster’s right to property under the Protocol) could be objectively justified. The Northern Ireland Government contended that the objective behind the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership and to be able to properly identify Mr McMullan's wishes. The Supreme Court, however, considered that the LGPSNI Regulations already required a surviving partner to establish that a genuine and subsisting relationship existed and that the nomination requirement was therefore "highly questionable". There was "no rational connection between the objective [to remove the difference of treatment between cohabitants and married/civil partners] and the imposition of the nomination requirement"; this meant that there was no justification for its discriminatory effect.

The requirement to nominate has already been removed for the Local Government Pension Scheme in England, Wales and Scotland but it continues to exist in other UK public sector pension schemes. This judgment therefore has implications for those schemes, which will now have to look to removing the requirement.

Private sector pensions

Similar provisions often exist in private sector pension schemes but, importantly, the Human Rights Act does not directly impact on private sector pension schemes. In any case, many private sector arrangements already contain provisions allowing for survivors' pensions to be paid to co-habitees where there is some degree of financial (inter)dependency, although this will generally be subject to trustee discretion. Nevertheless, this case could well lead members of those schemes to ask for the removal of any requirements which have the potential to discriminate on grounds of marital status.

Graham Wrightson is a pensions partner at Stephenson Harwood