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Supreme Court allows cohabitant to receive survivor’s pension

  • United Kingdom
  • Pensions

14-02-2017

UK Pensions Speedbrief: Supreme Court allows cohabitant to receive survivor’s pension

On 8 February 2017 the Supreme Court handed down its unanimous decision in the judicial review case brought by Denise Brewster in relation to the refusal of the Northern Irish Local Government Pension Scheme (NI LGPS) to pay her a cohabitant’s pension. The decision confirms that the requirement for a surviving cohabiting partner to be included on a nomination form completed by the deceased member in order to qualify for a survivor’s pension, despite otherwise meeting the criteria for payment of a survivor’s pension (for example, length of the cohabiting relationship), is incompatible with Article 14 of the European Convention on Human Rights (ECHR) and must be disapplied.

This decision could have significant implications for other UK public service pension schemes since most of them contain (or have contained) this nomination form requirement. It is less likely to be directly applicable to private sector schemes, not least because nomination requirements of this kind are relatively uncommon outside the public sector.

Watch Charmian Johnson, a Partner in our Pensions team, discuss the implications of the Supreme Court’s ruling on BBC Breakfast.

Background

Denise Brewster had been living with her partner, a member of the NI LGPS, for ten years at the date of his unexpected death in December 2009.

The NI LGPS introduced provisions to allow payment of cohabitants’ pensions from April 2009, in line with similar changes to all the major public service pension schemes around that time. However, as was the case in the other public sector schemes, Ms Brewster as a cohabiting partner could only claim a pension if:

  1. she could prove that she met various substantive criteria (as to the nature and duration of the cohabitation, her freedom to marry / enter a civil partnership with her partner, and financial dependency / interdependency) and that she had done so for at least 2 years up to the date of her partner’s death; AND
  2. she and her partner had signed and submitted a joint declaration confirming that the criteria were met and had been met for at least 2 years prior to the date of the declaration.

Ms Brewster could meet the first of these conditions, but the NI LGPS had no record of any declaration being submitted, and therefore refused her application for a cohabitant’s pension.

Decision

It was the latter condition alone - the lack of the nomination form - which was the subject of the challenge based on the ECHR, on the basis that the scheme provided a property entitlement which was the same for married and unmarried couples, but in relation to which an unmarried claimant had to get over an additional hurdle.

The Supreme Court concluded that the NI government had no convincing justification for making enforcement of that property entitlement harder for unmarried claimants than for married ones, and that therefore the inclusion of the nomination requirement amounted to unequal treatment on grounds of marital status in breach of Art.14 ECHR. The Supreme Court noted in particular that the declaration did no more than confirm facts which Ms Brewster had to prove independently of that declaration in any event. As such, it did not fulfil any useful purpose or further any legitimate aim – it had “no rational connection” with the underlying policy intention behind the introduction of the cohabitants’ pension provisions.

Wider implications – public sector schemes

Although the focus in Ms Brewster’s case was quite narrow, it will require all the major public sector schemes to revisit every case where a claim for a survivor’s pension has been refused on the basis that there was no nomination form in place. Since the provisions providing for cohabitants’ pensions were only introduced relatively recently (eg. for the English & Welsh LGPS, from April 2008), this should not mean reopening all historic death cases. However, given the number of members in public sector schemes, this is still likely to be a significant exercise.

Although the English & Welsh and Scottish LGPS changed their rules in 2014 to remove the requirement for a nomination form (in respect of deaths after 1 April 2014), they will still need to revisit past deaths, since they may well have refused to pay survivors’ pensions during the period between 2008 and 2014 owing to the lack of a completed nomination form.

However, cohabiting couples should not assume that this decision means that a survivor’s pension will automatically be payable by the pension scheme in all cases. The judgment strikes down the requirement for a nomination form but the rest of the rules will still apply. Therefore, any factual criteria for payment of a survivor’s pension will still need to be met (for example, being in a cohabiting relationship for at least 2 years prior to the member’s death).

Wider implications – private sector schemes

Whilst the Supreme Court cited as background material extracts from the Law Commission’s previous proposals to extend rights for cohabitants to claim property on death or relationship breakdown, the judgment did not raise, and therefore did not decide, the question of whether the NI LGPS could properly have refused to make any provision for cohabitants’ pensions in the first place. The focus was purely on the requirement for a nomination form; and whilst this has significant implications for public sector schemes – since they have all used the same model – it is unlikely that private sector schemes will incorporate rules of this kind. It should also be remembered that rights under the ECHR cannot automatically be asserted against a private individual or entity.

Similarly, the question of whether a discretionary cohabitant’s pension provision (the more common model in a private sector scheme) could be challenged as creating a greater hurdle for cohabitants than for surviving spouses / civil partners did not arise, since the NI LGPS provisions do not include any element of discretion. However, there would seem to be much stronger grounds for saying that the trustees or managers of the scheme need to be able to assess the quality of the relationship on a case-by-case basis in order to be able to determine whether the relationship is akin to marriage / civil partnership, and that therefore the “hurdle” – if such it is – is an appropriate means for delivering equivalent benefits to cohabitants, given that cohabitation is not a defined legal status and can encompass a very wide spectrum of relationships.

Comment

The Treasury has been reported as stating that they will need to examine the implications of this decision carefully, and no doubt public sector schemes will be contacting potentially affected members in due course. However, in the meantime, current members may wish to contact their schemes to ensure that the scheme’s records show that they are in a cohabiting relationship.

More importantly, if cohabitant have been refused (or did not try to claim) survivors’ pensions in the past solely owing to a lack of a completed nomination form, they should ask their scheme to revisit their case in light of the Supreme Court’s decision. Although schemes will be reviewing past deaths, this will take time, so it may speed up the process if affected cohabitants take the initiative and get in touch first.

The Northern Irish department responsible for the NI LGPS has said it will now pay the pension to Miss Brewster as quickly as possible and is encouraging any surviving partner of a deceased co-habiting scheme member who was refused a pension owing to the lack of a nomination form to make contact with them.

As a final point, it is interesting to note that there are some striking parallels with the issues discussed in the McCloud judicial pensions employment tribunal decision last month (see our previous speedbrief). Ms Brewster’s case is now the second case within little more than three weeks in which the government has been quite trenchantly criticised for not giving reasoned consideration to equal treatment requirements when introducing changes to public service pension schemes, and in particular, for prioritising the need for consistency of approach across schemes without first ensuring that the proposed approach was not discriminatory. One wonders whether these cases will lead to a different approach to government consultations and negotiations on future changes to public sector pensions.

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