Rachel Crasnow QC considers the recent judicial review by Denise Brewster for review (reported at  UKSC 8).
In this important case about the status of cohabiting partners and the objective justification of socio-economic policy, the Appellant Denise Brewster and her partner Lenny McMullan had lived together for 10 years before he suddenly died at age 43. Lenny had worked for Translink, the Northern Ireland’s public transport company for 15 years and was always a member of and paid into the Local Government Pension Scheme Northern Ireland (the Scheme).
Pension scheme and survivors
At the time of his death, the Scheme scheme was administered by the First Respondent (Northern Ireland Local Government Officers’ Superannuation Committee or NILGOSC), under the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (SI 2009/32) (the 2009 regulations). The Second Respondent, the Department of the Environment for Northern Ireland (DENI), made and was responsible for the 2009 regulations.
These 2009 regulations provided for the payment of benefits to certain survivors of members, including from April 2009, cohabiting surviving partners. These partners qualified for payment of a pension if they had been nominated by the member during his or her lifetime. Ms Brewster had thought that Lenny had completed nomination form but NILGOSC denied receiving it and refused to pay her a survivor’s pension. The appeal proceeded on the basis that the nomination was not made.
The Regulations included a procedural requirement to demonstrate that a genuine and subsisting relationship existed and that a couple had lived together for at least two years in a financially dependent or interdependent relationship. This was additional to the need to enter into a nomination.
Ms Brewster’s judicial review of the Regulations succeeded before the NI High Court in 2012 however in October 2013 the Court of Appeal allowed an appeal against the ruling.
However in 2014 the notification requirement for unmarried couples was removed from the equivalent Regulations in England and Wales and Scotland, yet not in Northern Ireland. Following this Ms Brewster sought to appeal to the Supreme Court.
In the only judgment handed down on 8 February 2017, Lord Kerr noted that there was no evidence before the Supreme Court about why the notification requirement had uniquely been preserved in the 2009 regulations.
A surviving unmarried partner of a pension scheme member already had an evidential hurdle in order to gain entitlement to the pension – so a key question for the Court was whether the nomination process was in breach of Ms Brewster’s human rights?
The Court considered the potential purpose of the nomination requirement. Could it be to prevent, (for vindictive reasons) the cohabiting partner from receiving a survivor’s pension? It was certainly not to test the truth of a claim that a cohabiting relationship was subsisting and long lasting since such an obligation was entirely independent of the nomination procedure.
Objectives of Pension Regulations
These 2009 regulations as a whole had the objective of putting cohabiting survivors in a similar position to married survivors. Yet the wishes of a married scheme member did not need to be stated or ascertained in a nomination.
DENI accepted that the provision of a survivor’s benefit engaged article 1 of protocol 1 of the ECHR (right to a possession) and that Ms Brewster’s status as being in a cohabiting relationship other than civil partnership or marriage was a relevant one for the purpose of Article 14 ECHR.
Reasons for nomination?
Before the CA the Respondents stated that the nomination was akin to the formal public affirmation of marriage, adding a necessary ingredient of correctness to the process. But the Supreme Court said to this:
“The need for a formal or public affirmation is not explained. Certainly, in this context, it has no inherent value. It does not, of and in itself, make the survivor any more deserving of the pension. The essence of entitlement is that the relevant parties have lived together for a sufficiently long period and that one is financially dependent on the other or that they are financially interdependent. Being required to make a public declaration that these conditions obtain adds nothing to the objective inquiry as to whether they in fact exist.”
From Lord Kerr’s conclusion that the making of a nomination added nothing to the evidential demands made of a survivor to show that she or he was in a longstanding relationship with the deceased scheme member and that they were either financially dependent on or financially interdependent with the deceased, he went on to consider the objective justification question.
Objective justification and human rights
It was relevant that A1P1 and A14 rights were engaged since “the duty to secure rights call for a more proactive role than the requirement to respect rights”.
The Court reminded itself that in cases of ex post facto justification the margin of discretion afforded to the decision maker may be narrower. Even in social policy questions, where there was no contemporaneous consideration of a measure at the time, the court has to turn a more inquiring eye upon the soundness of the decision at hand. The test to be applied was whether the measure was “profoundly without reasonable foundation”?
An interesting question raised was whether the choice not to marry should cause the court to scrutinise the discriminatory measure less? Had Ms Brewster by not getting married brought her status upon herself? Lord Kerr decided this factor was not a significant one, since pension schemes had changed to include cohabiting partners like Ms Brewster, ultimately in order to comply with equal opportunity and human rights obligations.
Next it was observed that there was no evidence of significant problems in administering the scheme if the nomination requirement was abandoned.
The Courts can review socio-economic policy
The Supreme Court firmly rejected suggestions that socio-economic policy challenges ought to be immune from review by the courts. No evidence existed of contemporaneous reasons for the nomination procedure. The justifications before the court were general and unsupported by concrete evidence.
The Defendants lost as there was no rational connection between the objective of removing the difference in treatment between a longstanding cohabitant and a married or civil partner of a pension scheme member, and the imposition of the nomination requirement.
Lord Kerr’s decision was that Ms Brewster was entitled to a survivor’s pension. The Court declared that the nomination requirement in the 2009 regulations be disapplied.
This case may well assist pension rights of unmarried couples in the public sector particularly where schemes currently require opt-ins by unmarried couples. Whether the case will lead to any retrospective change in the pension entitlement may depend on the outcome of another pension cases being heard before the Supreme Court on next month: that of Dermod O’Brien v the MOJ which is being heard along with the gay pensions case of Walker v Innospec.
That appeal could mean that the prohibition of discrimination against cohabiting scheme members, applies to payment of pensions in the future in respect of contributions paid prior to a pension scheme opening up to surviving partners of cohabiting members.
This case is unlikely to be the last word in protecting the financial rights of unmarried couples. Or on the legality of unnecessary opt-ins.
Rachel Crasnow QC © Cloisters 2017