Brewster: Supreme Court rules cohabitee entitled to survivor’s pension

The Supreme Court recently ruled in favour of a woman who was denied a survivor’s pension as her partner had not formally nominated her as his cohabiting partner under the pension scheme rules. We consider the implications of this decision for public and private pension schemes across the UK. 

20 February 2017

The UK’s Supreme Court has recently held that a requirement for a nomination form to be completed for a pension scheme member’s surviving cohabiting partner to be entitled to receive a survivor’s pension was a breach of human rights law. The Court ordered that the requirement be dis-applied and the pension paid to the deceased member’s partner. 

The case, known as Brewster, was brought following the death of a member of the Northern Irish Local Government Pension Scheme (LGPS). Ms Brewster had been in a relationship with the member for 10 years prior to his death; they bought a house together and were engaged to be married. Under the NI LGPS, a pension is payable to a cohabiting partner on the death of a member if certain requirements in relation to the duration of cohabitation and financial dependency are met and a nomination form has been completed. No form is required if the member was married or in a civil partnership. 

Following the member’s death, the LGPS refused to pay a pension to Ms Brewster as, although the cohabitation and financial dependency requirements were clearly met, no nomination form had been completed. Ms Brewster complained that this was unlawful discrimination against unmarried partners in breach of the European Convention of Human Rights (ECHR).

The Supreme Court held that the requirement for a nomination form was unlawful discrimination under the ECHR and could not be objectively justified – the completion of the form did not add anything to the process, which already contained conditions in relation to cohabitation and financial dependency. It ruled that the nomination form requirement should be dis-applied and a survivor’s pension paid to Ms Brewster.

Implications for public sector pension schemes
The regulations applying to the LGPS in Scotland and in England and Wales were amended from April 2014, following the High Court decision in the Brewster case, to remove the nomination form requirement for survivor’s pensions. The Northern Irish regulations will now also need to be amended. 

The Supreme Court’s decision will have implications for a number of other public sector pension schemes, which also have a nomination form requirement, and may also affect decisions taken by the various LGPS administering bodies to refuse a survivor’s pension while the nomination form requirement was in place. 

Implications for private sector pension schemes
The ECHR cannot be enforced against private bodies – the complaint in the Brewster case was brought against the Northern Irish government and the statutory body responsible for administering the NI LGPS – and so this decision is not directly relevant to private sector pension schemes. EU law and the UK Equality Act only prohibits less favourable treatment on grounds of marriage where it’s the married person or civil partner who suffers the less favourable treatment and not where it is the unmarried person. So long as this remains the case, it will be legal for private sector pension schemes to maintain different eligibility criteria for cohabiting partners in relation to dependant’s pensions.

That said, differences in treatment between married and unmarried partners in relation to survivor’s pensions continue to be a topical area and the boundaries of the law are continuing to be tested and challenged. The Supreme Court is due to hear a challenge to the existing exemption contained in the Equality Act permitting pension schemes to pay equal benefits for civil partners only in respect of benefits for service on or after 5 December 2005 later this year. We will continue to report on any notable developments in this area, as they arise.