Lenny McMullan died two days after becoming engaged to Denise Brewster, his partner of some ten years. She was refused a survivor’s pension from his Northern Ireland local government scheme because an unmarried partner had to be nominated, and the appeal proceeded on the basis that no nomination had been made. The Supreme Court held that this extra requirement was unlawful discrimination and that she was entitled to the pension.
The refused pension
Denise Brewster and William Leonard McMullan, known as Lenny, had lived together for some ten years before December 2009. They bought their home in Coleraine together in April 2005 and became engaged on Christmas Eve that year. Two days later Mr McMullan, aged 43, died suddenly. He died intestate and had no children. He had worked for Translink for about 15 years and had paid throughout into the Local Government Pension Scheme Northern Ireland.
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The scheme was administered by the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC). The Department of the Environment for Northern Ireland (DENI) had made the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009. From April 2009 those regulations made a cohabiting partner eligible for a survivor’s pension for the first time, but only if the member had nominated that partner. Ms Brewster believed that Mr McMullan had completed a form. NILGOSC said that it had not received one and refused payment. The appeal proceeded on the basis that no nomination had been made.
What the nomination rule required
Nomination was not itself proof of the relationship. A joint declaration took effect only if specified conditions had in fact been met for at least two years, including the day it was signed. The survivor also had to satisfy NILGOSC that, for a continuous period of at least two years immediately before the death, the couple could have married or formed a civil partnership, were living together as if they were spouses or civil partners, neither was living with a third person in that way, and one was financially dependent on the other or they were financially interdependent. Those conditions stood independently of nomination. Lord Kerr therefore asked what the nomination added.
No independent assessment answered that question. Public service schemes had historically limited survivors’ pensions to spouses. When cohabitants were included, a nomination or opt-in was copied from other public schemes and from proposals associated with England and Wales, without an explanation of why it was needed as well as evidence of the relationship. Consultation material in 2006 did not propose such a requirement, and the Law Commission’s 2007 report on cohabitation rejected opt-in schemes because people often fail to opt in, leaving a vulnerable partner unprotected. Northern Ireland’s own consultation did not propose nomination either. NILGOSC warned DENI that married and civil partners did not face the same conditions, and that the absence of a form was likely to cause disputes even where every other condition was met. Those difficulties were not addressed. The only clear reason for including the rule was a wish to maintain parity with Great Britain.
The courts below
Ms Brewster sought judicial review. She relied on article 14 of the European Convention on Human Rights, which requires Convention rights to be secured without discrimination on grounds including “other status”, read with the protection of possessions in article 1 of the First Protocol. Treacy J held that the nomination requirement was “an instrument of disentitlement” for unmarried partners. He accepted that the regulations had a legitimate aim, but held that the means were not proportionate to it. He declared the requirement incompatible with those provisions and quashed NILGOSC’s refusal of 1 July 2011.
NILGOSC and DENI appealed. On 1 October 2013 the Court of Appeal allowed the appeal by a majority. Higgins LJ held that the requirement was not unjustified or disproportionate, and Coghlin LJ held that it had not been shown to be manifestly without reasonable justification. Girvan LJ dissented. He pointed out that the earlier consultation material did not explain why nomination should be required as evidence, and that its advantages and disadvantages had not been evaluated.
Why the difference in treatment was not justified
Before the Supreme Court, the parties agreed on the legal framework. Refusal of the pension fell within the property protection, which can cover a claim in which a person has at least a legitimate expectation of enjoying a property right, although it does not guarantee a right to acquire property. Ms Brewster’s position as a cohabitant, rather than a spouse or civil partner, was a relevant status. An unmarried survivor who met the substantive cohabitation condition was in an analogous position to a surviving spouse or civil partner. The only dispute was whether the difference in treatment was objectively justified.
Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed, treated the objective as removing unjustified differences between a long-standing cohabitant and a spouse or civil partner. DENI rejected that description. It adopted Higgins LJ’s characterisation of the purpose as permitting some cohabitants, in defined circumstances, to obtain the same provision as married people and civil partners. Lord Kerr considered that this confused the aim with the means used to achieve it. A spouse did not have to be nominated, and the cohabitant already had to prove the relationship. Nomination did not test whether that relationship was genuine.
Later explanations did not supply the missing justification. DENI said that nomination gave the claim formality and testamentary significance and reflected the absence of a change in legal status. The majority below had treated a public affirmation as important: Higgins LJ described it as crucial, and Coghlin LJ likened the form to a public statement equivalent to a marriage or civil partnership certificate. Lord Kerr held that this had no inherent value. Entitlement depended on the longstanding relationship and on financial dependence or interdependence. The rule could have allowed a member to exclude a partner for vindictive reasons, but that was not said to be its purpose, and the member’s wishes still had no explained connection with entitlement.
Claims that abandoning nomination would increase administrative costs or assist actuarial prediction were unsupported and were not pursued in the Supreme Court. A suggested “bright-line” rule promoting workability and certainty was likewise unsupported. No thought had been given to administrative difficulty when the 2009 Regulations were made. England and Wales, and then Scotland, later removed the requirement. The responsible official in England and Wales said that it had been removed because it was considered unnecessary. Northern Ireland’s 2014 revision nevertheless retained it, without evidence of fresh consideration, despite the earlier reliance on parity.
The Court accepted, for this appeal, that a general social or economic measure will usually be respected unless it is manifestly without reasonable foundation. That did not protect a rule merely because pensions involve resources. DENI had not made a considered choice about their distribution; it had copied another scheme. Reasons advanced afterwards could still be respected if bona fide and within the decision-maker’s expertise, but they required closer scrutiny. The fact that cohabitation was a chosen status, rather than an immutable characteristic, was relevant but did not weigh heavily: the purpose of the 2009 change was to include long-term cohabitants, and nomination had not been separately evaluated.
Applying the settled proportionality questions, Lord Kerr considered it at least highly questionable whether nomination could justify limiting Ms Brewster’s article 14 right. In any event, there was no rational connection between equal treatment and the nomination requirement. The requirement also failed the further questions of whether a less intrusive measure could have been used without unacceptably compromising the objective, and whether the severity of its effect was outweighed by the importance of what it achieved.
Verdict: The Court unanimously allowed Ms Brewster’s appeal. It disapplied the nomination requirement in her case and declared that she was entitled to a survivor’s pension.
