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Woman who was refused survivor's pension 'victim of serious discrimination'

Published 24/11/2016

The Supreme Court heard that Denise Brewster and Lenny McMullan lived together for 10 years and jointly owned their home
The Supreme Court heard that Denise Brewster and Lenny McMullan lived together for 10 years and jointly owned their home

A woman denied payments from her late long-term partner's occupational pension is the victim of "serious discrimination", a QC has told the Supreme Court.

Denise Brewster, from Coleraine, Northern Ireland, is at the UK's highest court to challenge a ruling that she is not automatically entitled to a "survivor's pension" as she would have been if the couple had been married.

Five Supreme Court justices heard Ms Brewster and Lenny McMullan lived together for 10 years and owned their own home.

They got engaged on Christmas Eve 2009, but Mr McMullan died suddenly between Christmas night and the early hours of Boxing Day morning.

At the time of his death Mr McMullan had for 15 years been working for Translink, which delivers Northern Ireland's public transport services. He was 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 the Northern Ireland Local Government Officers' Superannuation Committee (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 overturned that decision and the Supreme Court is being asked to make a decisive ruling.

Helen Mountfield QC, representing Ms Brewster, now in her early 40s, asked the court to declare that the opt-in nomination rule in the 2009 regulations breaches Article 14 and Article 1 of the First Protocol of the European Convention on Human Rights. Nilgosc is fighting the action.

Article 14 prohibits discrimination in the way human rights laws are applied, and the First Protocol protects a person's right to property and the peaceful enjoyment of possessions.

Ms Mountfield told the five justices - deputy president Lady Hale, Lord Kerr, Lord Wilson, Lord Reed and Lord Dyson - the nomination rule was having "a seriously discriminatory effect".

The QC argued the opt-in requirement constituted unlawful discrimination under Article 14 and Article 1, First Protocol, because it was not justified by any public interest.

Cohabiting partners were being discriminated against when compared with spouses automatically entitled to the pension.

While fund-raising to bring her case to the highest court in the land, Ms Brewster said: "My case is simple: bureaucratic rules like this which discriminate against long-term cohabitees should not be permitted."

She added: "A positive decision from the Supreme Court is likely to impact on discrimination against cohabitees across a wide range of areas, not just pension rights."

Lawyers for Nilgosc and the Department for Communities for Northern Ireland argued the regulations were reasonable and served a legitimate aim.

They argued a cohabiting relationship was not the same as a marriage or civil partnership and retained "a transient character" even if a couple got engaged and jointly bought a home.

They asked the Supreme Court to uphold the appeal court's majority ruling that requiring a cohabiting partner to be "nominated" was justified and proportionate.

Reserving judgment, Lady Hale said the court would take time to consider its decision.

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