The Supreme Court rules in favour of Denise Brewster’s claim that she was unfairly discriminated against when she was denied payments from her late partner's occupational pension scheme.

Lenny McMullan and Denise Brewster had been in a relationship for 10 years and owned their own home when Mr McMullan passed away in December 2009.

Mr McMullan was a member of the Local Government Pension Scheme Northern Ireland (the scheme) which was administered pursuant to the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (the 2009 Regulations).

The 2009 Regulations permitted cohabitees to seek their deceased partner’s pension in the same way as married couples, provided that they met certain conditions to demonstrate that they were in a genuine and subsisting relationship – for example if there was a continuous period of cohabiting of at least two years.

However, cohabiting couples were also required to specifically nominate their chosen partner. Since Mr McMullan had not completed the required nomination form, Ms Brewster was denied access to his pension despite the fact that they met the other conditions under the 2009 Regulations.

Ms Brewster brought a challenge under Article 14 of the European Convention on Human Rights. After bringing her case through the Northern Ireland courts, the Supreme Court has now ruled in her favour, concluding that it is ‘unlawful discrimination’ to require unmarried members to complete a nomination form.

In coming to this decision the Supreme Court noted that:

  • There were understandable motives behind the procedural requirements to establish that a genuine and subsisting relationship existed.
  • However, the requirement for the nomination form for cohabiting couples could not be readily explained and the respondents could not justify its use. There was no evidence that the absence of a form would cause significant problems in administering the scheme and no evaluation of the ‘pros and cons’ had been undertaken.
  • The requirement for a nomination form did not meet the test for proportionality. The use of ‘less intrusive’ measures had not been considered, nor had the importance of the objective been weighed against the severity of the measure’s effects.

The case has important implications for cohabiting couples in other public sector schemes, (including NHS staff, teachers, civil servants and police) where the nomination form requirement also exists. Whilst cohabitees would still have to prove that a genuine and subsisting relationship exists, these schemes may review their existing practices in line with this case.

The impact on occupational pension schemes in the private sector is less significant, as most already provide survivors' benefits for unmarried partners.

Nonetheless the judgment is a reminder to trustees that procedural requirements in scheme rules are open to scrutiny. If rules are more onerous and potentially discriminatory for certain groups of members, schemes should be able demonstrate and justify the reasons for their inclusion. It is noteworthy that the respondents in this case made vague suggestions as to the workability of the scheme and the advantages of actuarial predictions were made but these were not supported by evidence. Advice should be sought on this issue if there remains any doubt.