A Co Antrim woman who claims she was unlawfully denied a survivor’s pension following the death of her army reservist partner is to have her civil action stayed, a High Court judge ruled.
Norma Mitchell sought damages for alleged discrimination in being deemed ineligible because she was neither married to nor in a civil partnership with Robert Maynard.
But Mr Justice McAlinden held that the case involves a public law challenge which should instead be directed at a potential judicial review of the relevant legislation.
Mr Maynard, who died in 2016, was a member of the Non-Regular Permanent Staff Pension Scheme due to his service between 1981 and 2007.
Despite remaining unmarried, he and Ms Mitchell had lived together since 1988, raising a family in an exclusive and financially interdependent relationship, the court heard.
She applied for a survivor’s pension under the scheme, but was turned down due to the couple’s marital status.
Ms Mitchell sued the Defence Council and Secretary of State for Defence, alleging the refusal amounts to unlawful discrimination under the European Convention on Human Rights.
Seeking damages for distress and hardship, her lawyers argued that she has lost an estimated £23,000 in pension since 2016.
Although no direct challenge was mounted to the scheme or its governing regulations, they contended that Ms Mitchell was unlawfully denied the same payments made to surviving spouses and civil partners.
The alleged discriminatory act was a failure to extend entitlement to surviving cohabiting partners, according to the plaintiff’s case.
In application to have the action halted, the defendants contended that any differences in treatment are justified.
They argued that Ms Mitchell has breached an “exclusivity rule” which prevents civil action litigation in cases involving a challenge to a decision made by a public authority which should have been mounted by a judicial review.
Granting their application, Mr Justice McAlinden pointed out that private law proceedings had been brought against public bodies for failing to make subordinate legislation to amend the pension scheme.
“To argue that this in reality is not a public law challenge is to mount an argument that is obviously and uncontestably bad, and to mount such a challenge by means of private law proceedings is clearly and plainly an abuse of the process of the court,” he held.
However, his decision does not necessarily spell the end for Ms Mitchell’s legal battle.
The judge confirmed: “I am minded to simply stay the plaintiff’s present proceedings, to allow the plaintiff to utilise the appeal procedure contained within the 2011 Scheme and/or to commence an application for leave to apply for judicial review.”