16 February 2017

The Supreme Court's decision that Denise Brewster – the survivor of a cohabiting couple – was entitled to a survivor's pension has different implications for public and private sector pension schemes.  

In this briefing, we explain the Supreme Court's decision, the different significance it has in the two sectors, and the likely next steps in both.

The impact on public sector pension schemes

Denise Brewster won her case for a survivor's pension with human rights arguments. This type of argument can only be made directly against a public sector body like, in this case, Northern Ireland's Local Government Pension Scheme (NILGPS) and the NI Government.

The Supreme Court decided unanimously that a requirement for the survivor of a cohabiting couple to be nominated for a pension was unlawful discrimination and must be disregarded. This was because there was no such stipulation in marriages and civil partnerships.

In the public sector the immediate impact is likely to be that schemes will drop any nomination requirement. A number of Local Government Pension Schemes in England, Wales and Scotland have done this in the recent past. 

Public sector schemes typically require a cohabitation to meet objective criteria e.g. the couple lived together for two years, were in a position to marry or form a civil partnership, and were linked financially. Ms Brewster and Mr McMullen satisfied these conditions. Only a nomination was missing.

Could surviving cohabitants claim retrospectively?

The decision is likely to have some retrospective effect. The potential cost of this will be the reason the Treasury is examining the case carefully.

Where a public sector scheme provided a survivor's pension for cohabitants, an individual who did not qualify solely for want of a nomination may now be entitled to a pension. Given the large membership of many public sector schemes, this could apply to a significant number of survivors.

However, survivor pensions for cohabitants have only been introduced into many public sector schemes in the last 15 years or so. For example, local government schemes like NILGPS only introduced them in 2008 or 2009. This will limit any look-back period.

Does the case affect the private sector?

The case does not mean a surviving cohabitant has a right to a pension from a private sector occupational pension scheme. Although not obliged to by the case, some private sector schemes may decide to review their practices around cohabitation and perhaps alter their rules.

The publicity around the case means enquiries from members are likely meanwhile. Schemes should consider preparing a response that explains the effect of the court's decision and where the scheme stands.  

In private sector schemes a typical approach where there was no marriage or civil partnership is for the trustees to have discretion to pay a pension to someone who had a relationship with a member that closely resembled marriage or civil partnership. Sometimes there are factual tests too e.g. as to the length of the relationship.

Some schemes also have a nomination requirement. They will want to remind members of this periodically, as with lump sum death benefit nominations.

The legal case – no objective justification

In court, Ms Brewster argued she was discriminated against on the grounds of her status as a cohabitant, contrary to Article 14 of the European Convention on Human Rights (ECHR). In the event, all parties agreed on this.

The only dispute was whether the NI Government could show that the nomination requirement was "objectively justified" and therefore lawful.  This meant demonstrating that the purpose behind it was sufficiently important to justify denying Ms Brewster a right to a pension.

The Supreme Court found the purpose of the scheme rules about cohabitations was to remove differences of treatment compared to marriages and civil partnerships in earlier editions of the rules. But it then held, firmly, that the argument for objective justification failed: there was "no rational connection" between that purpose and the nomination requirement. It added nothing to the other evidence of a committed relationship.

Human rights and the private sector

Human rights can be raised in litigation between private persons e.g. between an individual and a legal person in the form of a company. But they cannot be the basis for the legal action and their main effect is indirect.

If a case succeeded, the weightiest remedy the human rights argument could achieve would be a declaration by the court that a particular piece of UK law was incompatible with the ECHR. Put simply, this flags to government that the law is faulty. But there is no guarantee it will be amended and meanwhile it remains in force in its flawed form. For practical purposes, a moral victory only.

European Convention on Human Rights

The ECHR is part of UK law as a result of the Human Rights Act 1998.      

Article 14: Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Key contact

Richard Knight

Richard Knight Partner

  • Head of Pensions Practice
  • Pensions Services
  • Pensions Legal Advice

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