Belfast Telegraph

Landmark ruling as unmarried Northern Ireland woman Denise Brewster wins court battle for late partner's pension

By John Aston

A woman from Northern Ireland who was denied payments from her late long-term partner's occupational pension scheme has won a landmark Supreme Court appeal which could affect many other cohabitees.

Denise Brewster (42), a lifeguard from Coleraine, Co Londonderry, challenged a ruling that a nomination form had to be completed before she could receive payments under the public sector scheme. She was told she would not be automatically entitled to a "survivor's pension" as she would have been if she and her partner for 10 years, Lenny McMullan, had been married.

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But five Supreme Court justices unanimously ruled the nomination requirement must be "disapplied" and declared Ms Brewster was entitled to receive payments.

Later there was disagreement in the legal world over whether the impact of the ruling would be confined to Northern Ireland.

Ms Brewster's solicitor, Gareth Mitchell of public law firm Deighton Pierce Glynn, said: "Denying bereaved cohabitees access to survivor pensions causes huge distress and financial hardship." Mr Mitchell said that, following the 2012 High Court ruling in the Brewster case, local government pensions schemes in England, Wales and Scotland removed the nomination form requirement, although this was not retrospective.

"However, an identical nomination form requirement still appears not only in the Northern Ireland local government pension scheme, but also in many other public sector pension schemes across the UK, for example the NHS, teachers and civil service schemes."

Other legal experts say the court's reasoning was limited to the facts of Ms Brewster's case, involving the Northern Ireland Local Government Officers' Superannuation Committee (Nilgosc), and the wider impact will be limited. Other public sector pensions schemes that require nomination forms would only be ruled unlawful if the providers cannot provide evidence justifying different treatment for unmarried couples, lawyers suggested.

Ms Brewster and Mr McMullan lived together for 10 years and got engaged on Christmas Eve 2009, but he died suddenly between Christmas night and the early hours of Boxing Day.

He had 15 years' service with Translink and had been paying into Northern Ireland's local government pension scheme.

The scheme is governed by rules made under the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009.

Under the regulations, married partners automatically obtain a survivor's pension but unmarried partners only receive a pension if there has been compliance with an opt-in requirement.

This involves the pension scheme member nominating their partner for payments by giving Nilgosc a declaration signed by both partners.

Although she met all the other criteria, Nilgosc refused Ms Brewster a survivor's pension because the committee had not received the appropriate nomination form from Mr McMullan.

The High Court in Northern Ireland allowed her legal challenge against the refusal but the Court of Appeal in Belfast overturned that decision.

Now the Supreme Court - Lord Kerr with Lady Hale and Lords Wilson, Reed and Dyson - has ruled in Ms Brewster's favour.

Lord Kerr said he considered the objective of relevant provisions of the 2009 regulations "must have been to remove the difference in treatment between a long-standing cohabitant and a married or civil partner of a scheme member".

Ordering the nomination requirement in the 2009 regulations be "disapplied", the judge said there was "no rational connection between the objective and the imposition of the nomination requirement".

While raising funds to take her case to the Supreme Court, Ms Brewster said: "Bureaucratic rules like this which discriminate against long-term cohabitees should not be permitted."

Steve Webb, director of policy at Royal London, and ex-pensions minister, said: "It is unacceptable for cohabiting couples to be treated as second class citizens. We need pension scheme rules which reflect the world we live in today."

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