Belfast Telegraph

Woman wins Supreme Court battle over late partner's pension payments

A woman 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, Northern Ireland, 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.

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 or would have much wider significance.

Ms Brewster's solicitor, Gareth Mitchell of public law firm Deighton Pierce Glynn, said the ruling could affect millions of cohabitees across the UK.

He 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.

"This was a decision of the Supreme Court of the UK and it affects the whole of the UK."

But 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 morning.

He had 15 years' service with Translink, which delivers Northern Ireland's public transport services, 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 Northern Ireland Court of Appeal 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.

Helen Mountfield QC, representing Ms Brewster, had asked the Supreme Court to declare that the opt-in nomination rule in the 2009 regulations breached Article 14 and Article 1 of the First Protocol of the European Convention on Human Rights. Nilgosc contested 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.

Giving the Supreme Court's ruling, 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".

"To suggest that, in furtherance of that objective, a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant's Article 14 right, is, at least, highly questionable."

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: "My case is simple: bureaucratic rules like this which discriminate against long-term cohabitees should not be permitted.

"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."

Steve Webb, director of policy at Royal London, and ex-pensions minister, welcomed the ruling, saying: "It is totally unacceptable for cohabiting couples to be treated as second class citizens.

"With more than six million people living together as couples and the numbers rising every year, this is an issue that needs to be addressed as a matter of urgency.

"We need pension scheme rules which reflect the world we live in today, and not the world of 50 years ago".

Ms Brewster told the BBC: "This was about so many other families.

"Lenny would have been happy that so many other people are going to benefit as a result of this [decision]."

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