In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8

On 8 February 2017, a judgment was handed down in the Supreme Court, in a case concerning a requirement in a fairly obscure piece of legislation, the Local Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”). The 2009 Regulations provide for the payment of retirement pensions to members of the scheme and for the payment of pensions and other benefits to certain survivors of members. Under this legislation, for the first time, a cohabiting partner (“cohabitee”) became eligible for payment of a survivor’s pension. However, in order for a cohabitee to qualify for payment of the pension, they must have been nominated by the scheme member. There is no equivalent nomination requirement for married or civil partner survivors.

The facts of the case were that Mr McMullan was employed by Translink, the company which provides Northern Ireland’s public transport services. Throughout the duration of his employment, Mr McMullan paid into a pension scheme administered by the relevant local statutory body (“NILGOSC”) in accordance with the 2009 Regulations. Mr McMullan had lived with Denise Brewster for 10 years and the couple became engaged on 24th December 2009. Tragically, Mr McMullan died suddenly and unexpectedly two days later at 43 years old.

It was Ms Brewster’s belief that Mr McMullan had completed a form in which he nominated her. However, NILGOSC says that it did not receive the form and consequently refused to pay Ms Brewster the survivor’s pension. Ms Brewster applied for judicial review of this decision arguing that the absolute requirement of nomination in order for a cohabitee to be eligible constituted discrimination contrary to the European Convention on Human Rights and Fundamental Freedoms (ECHR). In the court of first instance Justice Treacy quashed the decision of NILGOSC not to pay Ms Brewster a survivor’s pension. NILGOSC and the Department of the Environment for Northern Ireland (DENI), who was responsible for the 2009 Regulations appealed this judgment. In 2013, the Court of Appeal found in favour of NILGOSC and DENI concluding that the nomination requirement was not unjustified or disproportionate.

In part, in light of the decision of Justice Treacy, there was a consultation which asked consultees to consider whether the nomination requirement should be retained. Subsequently, Local Government Pension Scheme regulations were revised in England and Wales in 2013 and in Scotland in 2014, these revisions included the removal of the nomination requirement for cohabitees.  These changes were not, however, introduced in Northern Ireland. When Ms Brewster and her legal advisers became aware of the changes they applied to reopen the appeal.

The case was then heard in the Supreme Court. The Supreme Court Justices determined that, as under the 2009 Regulations the applicant must show that they had been living with the pension scheme member for two years prior to the date of death, they needed to consider what function the freestanding nomination procedure served. The Supreme Court Justices found no convincing explanation as to why, if a cohabiting relationship satisfied the tests as to its genuineness and existence at the time of the death, a nomination was required. They further found that no intrinsic value attached to the making of such a nomination.

The Supreme Court Justices therefore concluded that there was no objective justification for denying Ms Brewster her rights. Indeed the evidence suggested that the very objective of the provisions in question were to remove the difference of treatment between a longstanding cohabitee and a married or civil partner of a scheme member. Therefore there was no rational connection between the objective and the imposition of the nomination requirement. Accordingly, the Supreme Court concluded that the nomination requirement should be disapplied and Ms Brewster should receive a survivor’s pension under the scheme.

It has been widely reported that this decision could affect millions of cohabiting couples and as such it is being considered a landmark ruling. It is too early to determine the full impact this case will have on cohabiting couples. The decision undoubtedly reflects a growing recognition amongst the judiciary and politicians of the need to broaden the rights of cohabitees. However, these changes are occurring on an ad hoc basis rather than through comprehensive legislative reform. This means that, whilst cohabitees are arguably in a better position than ever before, their legal position is not straightforward.

This is particularly true for a surviving cohabitee under the law of inheritance. The intestacy rules still make no provision for cohabitees and often result in an arbitrary outcome. In addition, unlike spouses and civil partners who benefit from a full inheritance tax exemption on any property passing between them, cohabitees do not benefit from any similar relief. Changes to the law in 2014 removed the obstacles that had previously restricted cohabitees from making claims to the court for provision from the deceased’s estate where reasonable financial provision has not been made for them. However, this is still a stressful, lengthy, costly and often upsetting process.

If you are a cohabiting couple, remember that taking appropriate action now should ensure your individual circumstances are taken into account and your respective estates are left in accordance with your wishes and you can protect your partner from having to resort to court action to establish their rights. The changing legal landscape for cohabitees should not be viewed as diminishing the need to prepare a Will and take other estate planning steps.

If you need advice regarding your Will or succession planning in general then please do not hesitate to contact us.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.