On 8 February 2017, the UK Supreme Court gave its unanimous decision in a case which further levels the playing field for unmarried cohabiting couples in the public sector.

Background

The facts of the case have been widely reported, essentially Ms Brewster, the appellant, had been living with Mr McMullan her partner for around ten years. They had purchased a property together and on Christmas Eve of 2009 the couple became engaged. Sadly, two days later Mr McMullan suddenly died, aged 43.

Mr McMullan had been employed by Translink, a public transport operator, and was an active member of the Local Government Pension Scheme ('LGPS' or 'the Scheme') in Northern Ireland which was administered by the Northern Ireland Local Government Officers' Superannuation Committee ('NILGOSC').

At the time, the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the '2009 Regulations') required that unmarried cohabiting partners prove cohabitation for at least two years and be nominated by their pension scheme member partner in order to receive a survivor's pension. No similar nomination requirement existed for married or civil partner survivors. When Mr McMullan died, NILGOSC declined to pay Ms Brewster a survivor's pension, maintaining that in accordance with the 2009 Regulations, it could not do so without having received a nomination form.

Ms Brewster applied for judicial review claiming unlawful discrimination. The High Court of Justice in Northern Ireland held that the requirement of having to nominate a cohabiting partner was, in fact, discriminatory under article 14 of the European Convention on Human Rights ('ECHR') when read together with the right to peaceful enjoyment of possessions under article 1 protocol 1 ('A1P1').

NILGOSC and the Department of the Environment for Northern Ireland ('DENI') appealed against the decision to the Court of Appeal (Northern Ireland) which held the nomination requirement was neither unjustified nor disproportionate, overturning the High Court's decision.

In the meantime, prompted by the High Court's decision, the equivalent regulations for LGPS in England and Wales and Scotland were amended removing the difference in treatment between unmarried cohabitees and married / civil partners in claiming a survivor's pension.

Not unsurprisingly when Ms Brewster became aware of the amendments made to equivalent regulations, she applied to the Court of Appeal for her case to be re-opened and when refused appealed to the Supreme Court.

Supreme Court decision

In what is seen as a landmark decision, the Supreme Court unanimously declared that the nomination requirement in the 2009 Regulations be disapplied and that Ms Brewster, as an unmarried cohabitant living with her partner in excess of two years, be entitled to receive a survivor's pension under the Scheme.

In their submission, DENI had suggested that the overarching objective behind the inclusion of the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership, as well as to identify the express wishes of the scheme member.

However, Lord Kerr, in his 26-page judgment, disagreed and explained in detail that the 2009 Regulations already required the surviving partner to establish that a genuine relationship existed, which meant that the nomination requirement added no weight or value to the evidential hurdle; the confirmation of the member's wishes holds no inherent value.

Effect and wider impact

The Supreme Court's ruling has, as expected, generated a lot of attention in the media but it is questionable what relevance it has for the rights of cohabiting couples with private sector pensions.

This is largely because by and large private sector occupational pension schemes provide survivor's benefits for unmarried partners without the need for the additional qualification feature of a nomination form. Accordingly direct application is likely to be relatively rare.

However, similar clauses to that considered in this case are not unheard of in the private sector and could be a cause for concern as discriminating between a cohabitant and a married spouse or civil partner.

It is also worth noting that the ECHR which was the legislative route for Ms Brewster's claim, is not a route applicable to private sector pension schemes as the rights encompassed in the ECHR cannot be enforced against private parties (individuals or legal entities).

For public sector schemes the case is relevant with most such schemes having similar clauses to the Scheme in question. It is to be expected that these schemes will need to revisit past death benefit cases to see whether a cohabitant pension could and should have been paid. Given the size and range of public schemes likely to be affected this could be a lengthy and sizeable task. The focus of any exercise will be the 'importance of the nomination form' in whether a pension was paid or claimed. Cohabitants will still have to meet the other factual tests of having a 'qualifying cohabiting relationship' and showing this many years after the event may not be easy in some cases.

As well as public sector schemes, schemes that have come out of the public sector, or were set up to take public sector workers, may retain/have a similar provision, where they have used a public sector scheme as a blueprint mirroring its rules, not just in benefits but also in administration (as part of, for example, fair deal arrangements), could also be affected. Trustees of these arrangements will need to consider their rules in this context and also any continuing contract to which the scheme relates.

Comment

Clearly it is to be expected that the Treasury and public sector schemes affected will be considering this judgement carefully and in many cases taking action to review past cases possibly affected. Individual members may also now be considering making contact to have their cases reviewed where they are aware or suspect that a claim was refused for the lack of a nomination form. There will also be cases where individuals self-selected and did not claim, aware they did not have that one piece of evidence.

Trustees of private sector schemes if in any doubt as to what their rules provide should have these checked to ensure that they are not one of the few schemes that contains similar provisions to those examined in this case.

In the future this judgement could form the basis of a challenge to the more commonly used model in the private sector where a cohabitant's pension is determined at the discretion of the trustees. The position in the public sector was a factual test, so if the test could be met there was no discretion involved. Trustees of private sector schemes to exercise their discretion have to consider all the relevant circumstances to establish that a relationship akin to marriage with interdependency exists. It may be that this opens up the possibility for cohabiting members to challenge the discretionary element of their entitlement seeing it as a hurdle that married or civil partners do not have to overcome.

Cohabiting remains an undefined concept (there may be pressure to provide more legal direction) and therefore whether or not it is explicitly expressed some form of judgement and discretion is required in order to establish whether a relationship is of a sufficient type to be called a cohabitation. Pension scheme trustees should be versed in using their discretions and the principles under which they can effectively do so. Future challenges are therefore more likely to be on the recognised basis that the trustees have not exercised their discretion appropriately rather than the discretion itself is an inappropriate barrier.