Matter of an application by Denise Brewster for Judicial Review [2017] UKSC 8 A “significant extension of cohabitee’s rights which could affect millions”?

Background
On the 8th of February 2017, the Supreme Court passed judgment in favour of cohabitant Denise Brewster, concluding that NILGOSC’s* decision not to award her a survivor’s pension; following the unexpected death of her fiancée, was unlawful.
Portions of the press have trumpeted that this “marks [a] significant extension of the rights of cohabitants and could affect millions of people across the UK” and that the decision will “extend benefits automatically to those who are unmarried”. It would not be unfair to say that they are embellishing the point.
Denise Brewster and William McMullan had cohabited for ten years; they became engaged on December 24th 2009, but William sadly passed away two days later. For fifteen years, William had worked at the public transport company Translink, through which he had become a member of the Local Government Pension Scheme for Northern Ireland.
The rules of this particular pension scheme were reformed in April 2009, ensuring that a surviving cohabiting partner could be eligible to claim a survivor’s pension. However, in order to qualify for any such payment, the surviving cohabitee would need to comply with the stipulations of Regulations 24 and 25.

Firstly, the member of the pension scheme would need to nominate their partner by sending a declaration, signed by both cohabitants, confirming that the surviving partner should be entitled under the rules of the pension scheme. Either partner could revoke this notice at any time.

Secondly, the surviving cohabitant would have to prove that; for a continuous period of at least two years prior to the member’s death (including the day on which the nomination had been signed):

a) the nominated cohabitee and the deceased member had been able to marry (or form a civil partnership),
b) the nominated cohabitee and the deceased member had lived together as husband and wife/as civil partners,
c) neither the nominated cohabitee and the deceased member had lived with a third person as husband and wife.
d) the nominated cohabitee and the deceased member were financially interdependent, or the nominated cohabitee was financially dependent upon the deceased.

These reforms were implemented solely for the purpose of creating parity and ensuring that local government employees would have “equivalent pension benefits across the UK”. No specific policy objectives were contemplated, or laid out, as to why a nomination requirement should be implemented. In fact, by the end of 2014, the Local Government Pension Schemes in England, Wales and Scotland had all eliminated their nomination requirements.

Mrs Brewster’s claim came about because she believed that she and her late partner had completed and submitted the necessary nomination form, whereas NILGOSC denied ever having received such a document and so refused her a survivor’s pension. Mrs Brewster’s argument was that the imposition of this nomination requirement constituted unlawful discrimination, contrary to Article 14 of the ECHR. The subsequent appeal to the Supreme Court proceeded on the basis that no valid nomination was ever received.

*Northern Ireland Local Government Officers Superannuation Committee

The Decision
The decision of the Supreme Court is set out in the judgment of Lord Kerr, with whom the rest of the court unanimously agreed.
Their Lordships appreciated that there was a need for evidential checks, designed to establish whether a genuine and lasting relationship existed between the cohabitant and the deceased member, but concluded that the nomination hurdle added nothing to this legitimate purpose, (nor had it been designed to). In fact, Lord Kerr concluded that the nomination requirement would only really serve as a means of allowing a pension scheme member to withhold pension rights out of vindictiveness.
The key area of dispute was whether or not the state’s interference with Mrs Brewster’s property rights was objectively justified. NILGOSC attempted to provide retrospective justification for the implementation of the nomination requirement, emphasising that the nomination requirement was an appropriate means by which to establish formality and the status of the relationship in question, by way of a public affirmation. Lord Kerr questioned the value and necessity of such formalities. Submissions that the nomination requirement improved the workability of the pensions scheme were also dismissed as unsubstantiated claims.
Typically, the courts consider it appropriate to afford public decision-makers a wide margin of discretion especially where socio-economic policy is being decided. However, here the Respondent was seeking to justify their policy on grounds which were not present to the mind of the decision-maker when that decision was made. This called for greater judicial scrutiny.
Ultimately, the Respondents’ attempts to justify the nomination policy were dismissed by the court as “general claims, unsupported by concrete evidence and disassociated from the particular circumstances of the appellant’s case”. Moreover, the nomination requirement was found to be disproportionate, as there could be no rational connection between this policy and the objective of the 2009 Regulations; to remove the difference in treatment between cohabitant and married couples.

Wider implications
Given that, even back in 1998, it was observed that “most large occupational pension schemes in the private sector now provide survivor’s benefits for the unmarried partners…of scheme members”, this decision is unlikely to have a huge impact on the shape of private pensions in the future.
Those cohabiting with nurses, teachers, civil servants, policemen and other such public employees in Northern Ireland will find that their survivors’ pension rights should now align with those in the rest of UK. They will still need to demonstrate the two-year qualifications, described above, to be entitled to a survivor’s pension; but the need to comply with the nomination requirement has been swept away.
It remains open for other pension schemes to argue that disparity between the positions of married persons and cohabitants is justified in their circumstances, which could well limit the broader impact of this decision.
On the other hand, this decision may well provide further impetus for future reform.

Written by George Hallam-Attree paralegal at London Family Solicitor.

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