Northern Irish Cohabitant Wins Battle for Survivor’s Pension
Northern Irish Cohabitant Wins Battle for Survivor’s Pension
Ms Brewster has won her fight to receive her late partner’s pension, after the Supreme Court unanimously allowed her recent appeal.
Denise Brewster, lived with her partner, William McMullan, for around ten years before they became engaged to one another on Christmas Eve of 2009. Sadly, Mr McMullan died two days later, without having made a Will.
This case centres around a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”) that unmarried, cohabiting partners must be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. There are other, additional requirements which must be satisfied: – they must be living together as if married or in a civil partnership; be able to marry or form a civil partnership; neither one of them may live with a third person as if married or in a civil partnership and one must be financially dependent on the other or they must be financially interdependent, all for a continuous period of two years. There is no nomination requirement for married or civil partner survivors. The Department of the Environment of Northern Ireland (DENI) included a nomination requirement in the 2009 Regulations in order to ensure “parity” with Scotland, England and Wales.
At the time of his death, Mr McMullan was employed by Translink, a public transport operator. Throughout his 15 years of employment with Translink, he had been a member of the Local Government Pension Scheme (the scheme). However, the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC), which administers the scheme, said it did not receive a form from Mr McMullan, nominating Ms Brewster to receive a survivor’s pension. They, therefore, decided that she was not entitled to receive the survivor’s pension.
The History of the Case
High Court Decision
On 9th November 2012 the High Court held that the requirement to nominate a cohabiting partner was incompatible with Article 14 of the European Convention on Human Rights (ECHR), which prohibits discrimination, and (when read together with Article 1, Protocol 1) peaceful enjoyment of possessions. It was decided that the nomination requirement was “an instrument of disentitlement” in relation to unmarried partners and the NILGOSC’s decision to refuse Ms Brewster the survivor’s pension was overturned.
Court of Appeal Decision
On 1st October 2013, the Court of Appeal found that the nomination requirement was neither unjustified nor disproportionate and upheld the appeal – overturning the High Court decision. The judges concluded that the requirement had not been shown to be manifestly without reasonable justification.
In light of the High Court’s decision, The Local Government Pension Schemes in Scotland, England and Wales were revised so as to remove the nomination requirement. Chris Megainey, deputy director in the Department for Communities and Local Government in England, explained that the requirement was removed “because it was considered to be unnecessary”. Kimberley Linge, policy manager in the Scottish Public Pensions Agency said that it was an overly burdensome requirement when compared with the requirements imposed on spouses and civil partners.
Supreme Court Decision
Prompted by the amendments in Scotland, England and Wales, Ms Brewster applied to the Court of Appeal for a re-opening of the appeal which was refused on 22nd May 2014. The Norther Irish scheme was revised on 27th June 2014 but it did not remove the nomination requirement. Ms Brewster then appealed to the Supreme Court.
The Supreme Court unanimously allowed the appeal, declared that the nomination requirement be disapplied and that Ms Brewster is entitled to receive a survivor’s pension under the scheme. All parties agreed that Ms Brewster was discriminated against on the grounds of her status as a cohabitant, contrary to Article 14 of the ECHR. What was disputed was whether or not it could be shown that the nomination requirement was “objectively justified” and, as a result, lawful.
Lord Kerr delivered the judgement on 8th February 2017 and focused largely on the policy objectives behind the requirement, or lack thereof. He comments on there being no evidence produced by DENI to show that the need for a nomination requirement was given any consideration and that it appears to have been included in the regulations for the sole reason that they would then be in line with those in place in Scotland, England and Wales.
DENI did provide justification for the nomination requirement but not until they were compelled to do so by the courts. Their reasoning was considered but not accepted by Lord Kerr. What he made obvious was that retrospective justification will always carry less weight than any clear attempts to explain and validate changes to law or policy, ahead of amendment.
DENI submitted that the requirements of the 2009 Regulations are “an appropriate means by which to determine the existence, formality and the status of the relationship, in addition to obtaining independent verification of the deceased’s wishes”. However, they failed to explain the value of “formality” and Lord Kerr said that “since the regulations require a surviving cohabitant to establish that she or he had been in a long term relationship with the scheme member, it is difficult to see what formality adds to the question of entitlement”.
Lord Kerr is referring to the aforementioned conditions which must be met by the couple, in addition to the nomination requirement. Interestingly, he is clearly of the view that two years amounts to a “long term relationship”. While Ms Brewster and Mr McMullan were, indeed, in a long term relationship of around ten years, it is worth considering what the outcome of this case would have been, had they been a couple who had only been together for the required two year period. Reading Lord Kerr’s judgement, it seems he would have reached the same conclusion.
The issue of the deceased’s wishes vs entitlement of the survivor is also touched upon by Lord Kerr. DENI submitted that by lodging a nomination form, the scheme members were making a “public affirmation” akin to the “formal and public commitment” of marriage. One of the Court of Appeal judges agreed and described this as “crucial”. Nevertheless, Lord Kerr was not satisfied by this argument and said that the need for public affirmation was not explained.
Arguably, in Scotland, DENI’s reasoning may have found more favour as it alluded to the idea that testamentary intention should be given some weight. After all, in Scotland, a cohabitant cannot claim on a deceased partner’s Estate unless their partner died without having made a Will. While this excludes certain pension schemes, governed by trustee discretion, generally speaking, it affords cohabiting couples testamentary freedom to disinherit their partners in a way that they could not, if they were married. Conversely, Lord Kerr questions what the scheme member’s wishes have to do with the question of entitlement.
What does the decision mean?
We do occasionally come across clients who had no idea that they could not freely disinherit their spouses and/or children and who are shocked to learn that they can’t leave their entire Estates to the Donkey Sanctuary. However, very rarely do we come across clients who have considered what their cohabitant of only two years may be entitled to inherit. The shock which ensues is usually followed by comments like “but we’re not married” because, rightly or wrongly, a large percentage of our population still thinks of marriage as the ‘next step’, a way to put a relationship on a more formal footing. It is considered to be a way of telling your friends and family (oh, and the government) that this is your significant other – you’ve made up your mind and you’re 99.9% sure!
Ms Brewster’s case is easy to get on board with. The couple had been in a relationship for around ten years and were engaged at the time of Mr McMullan’s death. But would we feel the same if they were a couple who had only been cohabiting for the required two year period? What if the deceased had children from a previous relationship who were trying to fund university at the time of his death?
Local government schemes in Scotland, England and Wales have already been changed so as to remove the nomination requirement but could the decision have an effect on private pension schemes, many of which contain similar clauses? Perhaps surviving cohabitants should be challenging the discretionary powers afforded to private sector trustees on the basis that they too are discriminatory. However, it is worth noting that while Human Rights can be raised in litigation between private persons, they cannot form the basis for the legal action and the rights encompassed in the ECHR cannot be enforced against private parties. While the courts must consider Human Rights in all cases they hear, the most they can do, when the matter concerns private parties, is declare that the law is incompatible with the ECHR. They must still apply the existing law and, although this should lead to law reform, it does not guarantee such an outcome.
The decision is likely to have retrospective effect. Public sector schemes will be revisiting past death benefit cases to examine whether or not a cohabitant pension could/should have been paid. However, survivor pensions for cohabitants are relatively new and were only introduced in the last 15 years or so, limiting the size of this potentially expensive exercise.
It is thought that around 6 million people in the United Kingdom are cohabiting, representing approximately 15% of all families, with this number likely to increase. Therefore, it is without doubt that reform is required so as to bring our laws into alignment with the times we are living in and to ensure that the rising number of couples who do not choose to wed are afforded the protection that comes automatically to married couples. Cohabitants can be left vulnerable in many respects and it is hoped that this case will spark changes in other areas, such as inheritance tax and capital gains tax.
Until such a time as the appropriate balance has been found, cohabiting couples who are in long term, stable relationships should, in the first instance, seek legal advice with a view to having Wills drawn up, before checking whether or not they are required to nominate their partner to benefit from their private pension scheme. As mentioned above, the Local Government schemes in England, Wales and Scotland have now been amended, dispensing with the nomination requirement.
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