Mark Smith: Inequalities in survivors’ pension rights

The course of true love never did run smooth and nor, it seems, does the law on the pension rights of survivors. Three recent cases show the limits of how far the courts will go in filling the gaps left by Parliament as it struggles to keep up with the range of relationships accepted by society in 2017.

Twenty years ago it was simple; if you were married to a pension scheme member (of the opposite sex) and out-lived them, you would likely be paid a pension when they died.

We now have pension rights for the survivors of same-sex marriages and those in civil partnerships, but often only for comparatively recent years of a member’s service, unlike for opposite-sex married couples. A challenge to that limitation is being heard by the Supreme Court in the case of Walker v Innospec.

In February 2017, the Court of Appeal decided that it is not (yet) unlawful discrimination to deny opposite sex couples the right to enter into civil partnerships, and thereby gain survivor’s pension rights, among other things (in the case of Steinfeld v Secretary of State for Education). The government was given more time to consider whether civil partnerships should be extended to opposite-sex couples.

Also in February 2017, the Supreme Court struck down a procedural requirement in the Northern Ireland Local Government Pension Scheme that denied an unmarried partner survivor’s pension rights. A deceased member did not nominate his partner, Denise Brewster, to receive a pension on his death, so none was payable, despite them having been in a long-term, stable relationship and having just got engaged. The partner relied on human rights laws to claim that the nomination requirement was a disproportionate procedural bar to her receiving a pension and the Supreme Court agreed.

The ruling is of limited direct impact because a similar requirement had been removed from most other public sector schemes, and private sector schemes tend either not to provide such benefits or only do so on a discretionary basis.

Mark Smith is partner at law firm Taylor Wessing