In a highly publicised Supreme Court decision, the recent case of Brewster v Northern Ireland Local Government Officers' Superannuation Committee has seen an unmarried woman win the right to receive survivor's pension following the death of her partner.

Legal Background

Article 14 of the European Convention of Human Rights (ECHR) contains a broad definition on the prohibition of discrimination. The Equality Act 2010 narrows the scope of this definition, providing that discrimination on the basis of marriage or civil partnership is prohibited, but gives no protection for discrimination against single or cohabiting individuals.

Facts

Ms Brewster (B) was unmarried but had been in a long-established relationship with Mr McMullan (M) for 10 years. M died unexpectedly, aged 43, in December 2009.

M was a member of the Local Government Pension Scheme (LGPS) of Northern Ireland, which is administered by the Northern Ireland Local Government Officers' Superannuation Committee (NILGOSC).

The Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (the Regulations) provided that under the scheme, a cohabiting partner had to be nominated by the scheme member in order to qualify for a survivor's pension. The receipt of survivor benefits for those couples who are married or in a civil partnership were automatic and did not require a nomination.

B believed M had completed the form nominating her but the NILGOSC claimed they had never received the form, subsequently refusing to make payment of a survivor's pension.

B applied for judicial review, claiming that her rights under Article 14 of the ECHR had been breached due to her receiving less favourable treatment because of the fact she was not married or in a civil partnership.

B was successful in the first instance. The High Court of Justice in Northern Ireland held that the difference in treatment between cohabiting couples and those married or in a civil partnership was unlawful. The decision was reversed in the Court of Appeal. B subsequently appealed to the Supreme Court.

Supreme Court Decision

The Supreme Court allowed B's appeal, holding that B was entitled to receive a survivor's pension and that the nomination requirement in the Regulations be disapplied.

The only way the nomination requirement could be considered lawful was if it could be objectively justified. The Supreme Court found that it could not be. The additional obligation placed upon cohabiting couples, by way of the nomination form, in order to receive a right to a survivor's pension, had no inherent value and could not be explained. Further, it did not make the survivor any more deserving of the pension.

Best Practice

This decision, although one of considerable interest, has limited application. The LGPS Regulations for England and Wales were amended in 2014 removing the requirement for nomination following the High Court decision in this case. The outcome of this case will bring consistency across the LGPS in all parts of the UK.