The rules of the Northern Ireland Local Government Pension Scheme (LGPS) on the payment of survivors' pensions to unmarried cohabiting partners required the member and unmarried partner to satisfy various conditions. Essentially, they had to be living together as man and wife or as if civil partners and there had to be financial dependence or interdependence. In addition, the partner had to have been nominated by the member before death. The requirement for nomination was absolute; there was no discretion for the trustees.
The partner of the claimant in Brewster died unexpectedly. No nomination form had been completed, although it was accepted that all the other conditions had been satisfied for Ms Brewster to claim a pension. However, given the absence of the nomination form, the body responsible for administering the LGPS refused to pay a survivor's pension.
The claimant successfully applied for judicial review of the decision in the High Court on the basis that the nomination requirement was a breach of Article 14 of the European Convention on Human Rights as it was discriminatory on the basis of marital status. This decision was overturned by the Northern Ireland Court of Appeal which found in favour of the LGPS.
In the Supreme Court the claimant's appeal was upheld. The requirement for nomination should be disapplied and, given it was accepted that she satisfied all the other conditions, a survivor's pension should be paid to the claimant.
The only issue the Supreme Court was looking at was whether there was objective justification for the nomination requirement. The Court decided it was unjustified. The need for a formal nomination was not explained – it added nothing to the independent process whereby the survivor had to show the necessary relationship and financial dependence. For married couples or civil partners, the wishes of the member did not have to be ascertained or stated, so there was no objective justification for that requirement to apply to unmarried partners.
Comments & Actions
- Although the press commentary suggested this case was highly significant, its actual impact is very limited. The decision only concerned the Northern Ireland LGPS, rather than making a wider statement of principle. The case concerned the European Convention on Human Rights, which applies directly only to public sector schemes.
- The case didn't consider (or raise any objection to) the fact that under the LGPS unmarried partners had to satisfy additional conditions to married partners (eg around dependency and the couple having lived together for at least two years prior to death). The case simply concerned whether the nomination form requirement was unjustified. Nothing in this decision changes the fact that UK law specifically allows benefits to be paid to married/civil partners and not to unmarried partners.
- However, given the wide reporting of the case, it makes sense for schemes which currently provide survivors' pensions for unmarried partners to check whether their rules are unnecessarily stringent in terms of nomination requirements. For schemes that do not do so, they might want to at least consider whether they should change their policy going forward – subject of course to the Finance Act rules requiring dependence in order for payments to be authorised.
- More generally, the case illustrates the need for concrete evidence of justification for discrimination. One of the arguments the administrating body put forward was that the nomination requirement was intended to reduce costs and help with actuarial predictions, but this was not supported by evidence – "vague suggestions" were not enough, the Court said.
- On a related topic, we are expecting at any time a decision from the Supreme Court in Walker v Innospec – an appeal from the Court of Appeal's decision that it is lawful to disregard pensionable service completed before 5 December 2005 (the date the Civil Partnership Act came into force) in the calculation of dependants' pensions for civil partners.