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Pension provision for Cohabitees - Fisher Meredith review the recent decision in Brewster

View profile for Henrietta  Bennett
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The case brought by Denise Brewster in relation to her late partner’s occupational pension has attracted wide media coverage. Henrietta Bennett considers the judgment and its potential impact on other cohabiting couples.

Background

William ‘Lenny’ McMullan and Denise Brewster lived together for ten years before Mr McMullan proposed on Christmas Eve 2009. Unfortunately, Mr McMullan died two days after his proposal, raising questions about Ms Brewster’s eligibility for a survivor’s pension.

Mr McMullan was employed by Translink, the company providing Northern Ireland’s public transport services, and so paid into the Local Government Pension Scheme (‘the scheme’). The scheme’s 2009 Regulations, made by the Department of the Environment for Northern Ireland (DENI), require unmarried cohabiting partners to be nominated by the scheme member in order to be eligible for a survivor’s pension. Nomination is not a requirement for married or civil partner survivors.

Ms Brewster alleged that Mr McMullan had nominated her in a form that the Northern Ireland Local Government Officers’ Superannuation Committee NILGOSC, which administers the scheme, claimed to have not received. Accordingly, Ms Brewster applied for judicial review of NILGOSC’s decision not to pay her a survivor’s pension, where the High Court held that the nomination requirement was incompatible with article 14 of the ECHR (anti-discrimination) when read together with article 1 protocol 1 (A1P1) (peaceful enjoyment of possessions). On the respondents’ appeal, the Court of Appeal found that the nomination requirement was neither unjustified nor disproportionate. Prompted by the High Court judgments, the equivalent regulations in England and Wales and Scotland were amended; removing the nomination requirement. This led to Ms Brewster’s appeal to the Supreme Court.

Decision

The parties agreed that a survivor’s pension falls within A1P1 and that the appellant enjoys a relevant status for the purpose of article 14; analogous to a surviving married partner or civil partner. The issue focused on whether the interference with the appellant’s right to property has been “objectively justified”.

The second respondent, DENI, clarified that the objective behind the nomination requirement in the 2009 regulations was to establish the existence of a cohabitee equivalent to marriage/civil partnership and identify the wishes of the scheme member. However the Supreme Court found the former objective to be clarified in the 2009 regulations’ requirement for a surviving partner to establish that a genuine and subsisting relationship existed. The latter objective was said to have ‘no intrinsic value’. Lord Kerr allowed the appeal saying ‘I consider that there is no rational connection between the objective and the imposition of the nomination requirement’ with which Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed.

Wider implications

The judgment considered the socio-economic implications of the case and found that ‘it must be shown that a real policy choice was at stake’. It was emphasised that this case was not rooted in socio-economic reasoning and instead was largely administrative. Evidently this ruling is important for cohabitees seeking to access survivor’s pension payments as they will be treated equally to those who are married, providing they satisfy the relationship requirement detailed above.

The importance of the decision for those who choose to cohabit rather than marry (or as in this case simply have not yet married) - It is reported that the wording of the Translink pension scheme is mirrored by many other public sector schemes and the solicitor for Ms Brewster has suggested that as many as 12 million people could be affected by the decision.

With the rapid growth in the numbers of those remaining unmarried in recent years - now as many as 9 million couples are reported as being unmarried - the time has come for legislation in this area to provide certainty for all but in the meantime, this judgment is welcomed.  If you have any doubts about your rights, you should consult a specialist solicitor.

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