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Cohabitant nomination rule in pension scheme unlawful, Supreme Court rules

8 February 2017

A requirement to nominate a cohabiting partner to secure their entitlement to benefit under a pension scheme had no rational connection with the objective of removing the difference of treatment between cohabitants and spouses or civil partners, and its discriminatory effect could therefore not be justified, the UK Supreme Court ruled today.

Five judges unanimously allowed an appeal by Denise Brewster from the Court of Appeal of Northern Ireland, which had held, reversing the High Court, that the requirement, contained in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009, was neither unjustified nor disproportionate.

Ms Brewster's late partner, William McMullan, had been a member of the scheme for 15 years and the couple had lived together for the 10 years prior to his death. Although she believed he had nominated her to be eligible for a survivor's pension, the administrators claimed to have received no form and refused her a pension. The scheme also required the survivor to show that he or she had been a cohabitant for two years before the date on which the member sent the nomination and had been in that position for two years before the date of death.

Following the High Court ruling, the equivalent regulations in England & Wales and in Scotland were amended to remove the nomination requirement in those schemes.

Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed, said that the starting point in assessing justification was the duty of the state under article 14 of the ECHR to “secure” the appellant’s right to equal treatment. This duty called for a more proactive role than the requirement to respect rights. The question of justification had to be assessed objectively, but the court should not substitute its view for that of the decision-maker, particularly in matters of socio-economic policy.

Since the regulations already required a surviving partner to establish that a genuine and subsisting relationship existed, the nomination requirement added nothing to this evidential hurdle. The confirmation of the member’s wishes had no intrinsic value. No evidence was produced that to remove it would cause significant problems in administering the scheme. Given that property rights under the Convention were engaged and Ms Brewster had the requisite status to rely on article 14, the objective behind the nomination requirement must have been to eliminate unwarranted differences of treatment between married or civil partner survivors on the one hand and unmarried long term partners in a stable relationship on the other.

In general measures of economic or social strategy, he continued, the court would generally respect the legislature’s policy choice unless it was “manifestly without reasonable foundation”. But where the question of the impact of a particular measure had not been addressed by the department responsible for a particular policy choice, the court would be less reticent. In the present case, not only were socio-economic factors not at the forefront of the decision-making process, but the attempt to justify retention of the procedure was characterised by general claims, unsupported by concrete evidence and disassociated from the particular circumstances of the appellant’s case.

There was no rational connection between the objective, which was to remove the difference of treatment between a longstanding cohabitant and a married or civil partner, and the imposition of the nomination requirement and therefore its discriminatory effect could not be justified.

Click here to access the judgment.

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