Supreme Court: 'opt-in' unnecessary for unmarried partner to be entitled to survivor's pension

Changes to the rules governing Northern Ireland's local government pension scheme (LGPS) which extended survivor's benefits to cohabiting partners required the scheme member to complete a nomination form awarding benefits to their partner. The Supreme Court ruled unanimously that this nomination requirement was not a proportionate response to the aim of determining the "existence, formality and status" of a cohabiting relationship.

The nomination requirement does not appeal in the rules of the LGPS in England, Wales or Scotland.

"The judgment shows that whilst the lawmaker can enact rules and regulations that clearly provide for one thing, these are still subject to scrutiny by the courts and the applicability of more sacrosanct laws such as the Human Rights Act," said pensions expert Nick Stones of Pinsent Masons, the law firm behind Out-Law.com.

"When policy decisions impinge on fundamental rights, then the lawmaker needs to carefully consider and justify the changes at the time of the enactment. Retrospective justification will carry less weight," he said.

Denise Brewster and Lenny McMullan had been living together for some 10 years before the latter's death at the age of 43 in December 2009, two days after the couple had become engaged. At the time of his death, McMullan was employed by Northern Ireland's public transport provider Translink, and had been contributing to Northern Ireland's LGPS for around 15 years.

In 2009, the LGPS scheme rules were amended so that a cohabiting surviving partner became eligible for payment of a survivor's pension for the first time, in the same way as a spouse. However, a cohabiting surviving partner had to have been nominated by the member before they could qualify. The same requirement did not apply to spouses. The scheme administrator did not receive a nomination form from McMullan before his death, and so refused to pay a survivor's pension to Brewster.

Brewster sought judicial review of the administrator's decision on the grounds that the "absolute requirement" for unmarried partners to be nominated was unlawful discrimination, in breach of her right to 'peaceful enjoyment of her possessions' under the European Convention on Human Rights (ECHR). The High Court in Northern Ireland found in her favour in 2012, but this was overturned on appeal.

Giving the unanimous judgment of the Supreme Court, Lord Kerr agreed with Brewster that the nomination requirement was disproportionate.

"The objective of the particular provisions in the 2009 regulations which are involved here must have been to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member," he said. "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 [Brewster's] article 14 right is, at least, highly questionable."

"It was not surprising that the pension scheme said there was no benefit," said pensions expert Nick Stones. "The rules clearly required them to have opted in. The question posed by the court was whether that opt in was necessary and proportionate."

"To make matters worse for the Northern Ireland Executive, they had never turned their mind to the point. Whilst it is questionable whether the outcome would have been any different, if the Executive had considered the point at the time of enacting the law it would have been given more leeway by the judges," he said.