Cohabitant’s pension victory

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The Supreme Court has held that a statutory provision relating to survivors’ pensions discriminated against co-habiting couples. However, while the decision is of direct relevance to public sector pension schemes, it is questionable whether it will have a wider impact for private sector pension schemes.

On 8 February 2017 the Supreme Court handed down its unanimous decision in the judicial review case brought by Denise Brewster relating to the refusal of the Northern Irish Local Government Pension Scheme (NI LGPS) to pay her a survivor’s pension.

Denise Brewster had been living for around ten years with her partner, William McMullan, who was a member of the NI LGPS. Sadly, two days after the couple became engaged, William suddenly died.

Although the relevant regulations governing the NI LGPS provided for the automatic payment of a survivor’s pension to a spouse/civil partner, a survivor’s pension was only payable to a cohabiting partner if they had been nominated by the member.

NI LGPS refused to pay Ms Brewster the survivor’s pension on the grounds that they were not in receipt of the necessary form completed by Mr McMullan nominating her for this benefit.

Ms Brewster applied for judicial review of the decision, arguing that the absolute requirement of nomination imposed on unmarried partners as a condition of eligibility constitutes unlawful discrimination contrary to the European Convention on Human Rights and Fundamental Freedoms (ECHR).

The Supreme Court agreed that the requirement for a nomination form constituted an unjustified difference in the treatment of unmarried couples (when compared to married couples/ civil partners), which contravened the requirements of the ECHR.

This case concerned a public sector pension scheme, and therefore the decision could have significant implications for other UK public service pension schemes as most of them contain (or have contained) a nomination requirement.

While the nomination requirement has already been removed in respect of the LGPS in England, Scotland and Wales, these schemes may need to revisit any decision not to pay a survivor’s pension on the grounds that no nomination form was completed.

How they will go about doing this is not yet known, but if a cohabitant has been refused (or did not try to claim) a pension because of a lack of nomination, they should contact the relevant scheme about this in light of the Supreme Court’s decision.

Despite this, cohabiting couples where one party is a member of a public sector pension scheme should not assume that this Court case means that a survivor’s pension will automatically be payable; the factual criteria to support a claim (such as evidence of cohabiting for a two-year period) will still need to be met.

The decision is less likely to be applicable to private sector schemes, because nomination requirements of this kind appear to be uncommon outside of the public sector. It is common for private sector schemes not to provide a pension to a surviving cohabitant, or to only provide such pension at the discretion of the employer or trustee in relation to the scheme – to date, this approach has not been challenged in the courts.

Furthermore, it would not be possible to bring the type of claim that Ms Brewster brought against a private sector scheme since the provisions of the ECHR are directly enforceable only against public sector institutions.

It therefore remains important for individuals who are members of pension schemes to check the eligibility criteria in respect of the payment of a survivor’s pension, and consider whether any action is required to be taken to demonstrate that the criteria has been met.

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