The Supreme Court has ruled that an unmarried woman is entitled to receive payments from her co-habiting partner’s workplace pension scheme following his death.
Denise Brewster, who brought forward the review, had been living with William Leonard McMullan for 10 years in the shared home that they bought together in 2005, when he died unexpectedly at the age of 43 in 2009.
Before his death, he had worked for Northern Ireland’s public transport services organisation, Translink, for 15 years and was a member of the Local Government Pension Scheme Northern Ireland, which is administered by the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC).
Despite regulations introduced in April 2009 by the Department of the Environment for Northern Ireland (DENI), which stated that survivor benefits would be payable to widows, widowers, civil partners and nominated co-habiting partners, Brewster was refused a survivor’s pension. She believed that McMullan completed the relevant nomination form, however the NILGOSC responded that it had never received the form.
Brewster applied for a judicial review of this decision, arguing that the nomination requirement for unmarried partners constituted unlawful discrimination contrary to the European Convention on Human Rights and Fundamental Freedoms, considering the 2009 regulations and also that married partners do not have to undergo the same process.
NILGOSC’s decision not to pay Brewster a survivor’s pension was quashed in 2012. NILGOSC and DENI appealed the decision, with the Court of Appeal allowing this in 2013.
The 2009 regulations explain that the signed nomination form must show that the member and their partner are either able to marry or form a civil partnership; are living together as if they were husband and wife or civil partners; not living with any third person as husband and wife or civil partners or are financially dependent or interdependent on each other. These conditions have to be met for a continuous period of two years for the nomination to have effect.
In April 2014, the Local Government Pension Scheme in England and Wales was revised, removing the opt-in requirement for unmarried couples.
Brewster subsequently applied to the Court of Appeal for a re-opening of the appeal, which was refused.
February 2017’s Supreme Court ruling found that since the 2009 scheme amendments were introduced to place a surviving co-habitant who was in a stable, long-term relationship with a deceased scheme member on equal footing with a surviving spouse or civil partner, the need for a nomination process at all is questionable, when the same process does not have to be followed for married survivors. Additionally, establishing the truth of the claim for a survivor’s pension is not dependent on the nomination process.
The Supreme Court therefore allowed Brewster’s appeal and ruled that she is entitled to receive a survivor’s pension under the scheme.
Nick Stones, partner at Pinsent Masons, said: “It was not surprising that the pension scheme said there was no benefit as the rules clearly required the couple to have opted into the benefit. The court struggled to see why the opt in it was necessary because there were other ways of evidencing the key criteria. To make matters worse for the [Northern Ireland] Executive, they had never turned their mind to the point. While it is questionable whether the outcome would have been any different, if the Executive had considered the point at the time of enacting the law, it would have been given more leeway by the judges.
“This judgement shows that while the law maker can enact rules and regulations that clearly provide for one thing, these are still subject to scrutiny by the courts and the applicability of more sacrosanct laws such as the Human Rights Act. When policy decisions impinge on fundamental rights, then the law maker needs to carefully consider and justify the changes at the time of the enactment. Retrospective justification will carry less weight.”
Dave Prentis, general Secretary at trade union Unison, added: “[This] judgement is good news for anyone like Denise Brewster who stood to lose out on their partner’s pension, simply because a form hadn’t been signed. It means the Northern Ireland local government pension scheme and others covering people working in education, the NHS and the civil service will now have to look again at their rules.
“The last thing a recently bereaved person needs is to have to fight for a pension that’s rightfully theirs. This thankfully will no longer be necessary.”