Brewster – In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland)
In this case, the Supreme Court allowed an appeal from the Northern Ireland Court of Appeal, holding that a provision relating to survivors’ pensions discriminated against cohabiting unmarried couples, was not justified and should be disapplied.
Mr McMullan was a member of the Local Government Pension Scheme Northern Ireland (“the Scheme”). Mr McMullan had lived with Ms Brewster (the appellant) for ten years, and they owned a house together. They became engaged in December 2009. Sadly, Mr McMullan died two days later.
When Mr McMullan died, the Scheme was administered pursuant to the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (“the 2009 Regulations”).
The Scheme provided for the payment of pensions and other benefits to certain survivors of members. In April 2009, when the 2009 Regulations came into force, a cohabiting surviving partner became eligible for payment of a survivor’s pension. But, in order to qualify for payment, a cohabiting surviving partner had to be nominated by the member.
Mr McMullan had not made a nomination in respect of his pension.
Ms Brewster applied for judicial review of the decision not to award her a survivor’s pension, arguing that the absolute requirement of nomination imposed on unmarried partners as a condition of eligibility for a survivor’s pension under the 2009 Regulations constitutes unlawful discrimination contrary to the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”).
The 2009 Regulations
Under the 2009 Regulations, a surviving spouse, nominated cohabiting partner or civil partner is entitled to a survivor’s pension. “A member (A) may nominate another person (B) to receive benefits under the Scheme by giving the Committee [ie the body responsible for administering the Scheme] 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 […] civil partners;
- Neither A nor B is living with a third person as if they were husband and wife or […] civil partners; and
- Either B is financially dependent on A, or A and B are financially interdependent.”
The nomination had no effect if the condition had not been satisfied for a continuous period of at least two years.
If a nomination was not completed, the claim failed – there was no trustee discretion to allow payment in such a case.
Whether or not the applicant had a legitimate claim under the ECHR was not in dispute.
Article 14 of the ECHR requires that a state should ensure an individual’s rights under the ECHR are in place unless their denial can be objectively justified.
It was stated that the procedural requirements for unmarried cohabitants claiming survivor benefit in the 2009 Regulations were “designed to ensure that the existence of a cohabiting relationship, equivalent to marriage or civil partnership was established in an objective manner and also that the wishes of the scheme member had been identified [through the execution of a valid nomination form]”.
However, while the court could “understand why […] procedural requirements designed to establish that a genuine and subsisting relationship existed had been included”, it did not see how this explained why a nomination was required. “This added nothing to the evidential hurdle which a surviving unmarried partner of a scheme member had to face”.
Further, no evidence had been produced as to why a nomination would or should be evidentially required, the respondents could not demonstrate that there would be significant problems in administering the scheme without it, and no evaluation of the “pros and cons” of having a nomination procedure had ever been undertaken.
The nomination requirement was therefore “manifestly without reasonable foundation” and could not be objectively justified.
The Judge also found that the requirement for a nomination did not meet the test for proportionality. There was no “rational connection” between the objective (of aiming to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member) and the imposition of the nomination condition. In addition, the use of “less intrusive” measures had not been considered, nor had the importance of the objective been weighed against the severity of the measure’s effects.
Judge Kerr concluded that the requirement for nomination should be disapplied, and that Ms Brewster must be paid a survivor’s pension.
A scheme may set conditions for survivor benefits which require a cohabitee to evidence that they were in a “stable, long term relationship”. However, the decision in the case of Ms Brewster should act as a prompt for trustees to revisit their rules and scheme literature in relation to provision for survivors, and speak to their advisers to ensure that any potential problems in the light of this decision are properly addressed.