Coleraine woman is entitled to late partner's pension
Denise Brewster challenged a ruling she is not automatically entitled to a "survivor's pension'' as she would have been if the couple had been married.
Last updated 8th Feb 2017
Ms Brewster and Lenny McMullan lived together for 10 years and owned their own home.
They got engaged on Christmas Eve 2009, but Mr McMullan died suddenly between Christmas night and the early hours of Boxing Day morning.
At the time of his death Mr McMullan had 15 years' service with Translink, which delivers Northern Ireland's public transport services. He was paying into Northern Ireland's local government pension scheme.
The scheme is governed by rules made under the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009.
Under the regulations, married partners automatically obtain a survivor's pension, but unmarried partners only receive a pension if there has been compliance with an opt-in'' requirement.
This involves the pension scheme member nominating their partner for payments by giving the Northern Ireland Local Government Officers' Superannuation Committee (Nilgosc) a declaration signed by both partners.
Although she met all the other criteria, Nilgosc refused Ms Brewster a survivor's pension because the committee had not received the appropriate nomination form from Mr McMullan.
The High Court in Northern Ireland allowed her legal challenge against the refusal, but the Court of Appeal overturned that decision.
Now the Supreme Court has ruled in Ms Brewster's favour.
Helen Mountfield QC, representing Ms Brewster, who is in her early 40s, had asked the Supreme Court to declare that the opt-in nomination rule in the 2009 regulations breached Article 14 and Article 1 of the First Protocol of the European Convention on Human Rights. Nilgosc contested the action.
Article 14 prohibits discrimination in the way human rights laws are applied, and the First Protocol protects a person's right to property and the peaceful enjoyment of possessions.
Giving the Supreme Court's ruling, Lord Kerr said he considered the objective of relevant provisions of the 2009 regulations must have been to remove the difference in treatment between a long-standing cohabitant and a married or civil partner of a scheme member.
To suggest that, in furtherance of that objective, a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant's Article 14 right, is, ast least highly questionable.''
Ordering the nomination requirement in the 2009 regulations be disapplied'', the judge also said he considered there was no rational connection between the objective and the imposition of the nomination requirement''.
Ms Brewster's solicitor, Gareth Mitchell of public law firm Deighton Pierce Glynn said the ruling could affect millions of cohabitees.
Mr Mitchell said: Denying bereaved cohabitees access to survivor pensions causes huge distress and financial hardship.
Now that around one in six families in the UK are cohabiting families, reform is long overdue.
The decision has significant implications for millions of cohabitees in relation to pension benefits.
It also lays down the approach to be adopted when considering complaints of discrimination on the grounds of marital status in other areas.''
Mr Mitchell said the rule the Supreme Court declared unlawful is found in most of the UK's public sector pension schemes, affecting 12 million members.
He said it is also found in many defined benefit pension schemes in the private sector, of which there are around 11 million members.
He said: This was a decision of the Supreme Court of the UK and it affects the whole of the UK.
The discrimination under the Human Rights Act identified by the Supreme Court means that wherever similar provisions appear in public sector schemes they are likely to be unenforceable and we expect them all to be removed.
While the Human Rights Act does not bite on private sector schemes, members of those schemes will expect their pension scheme providers to follow suit and to operate schemes which do not discriminate unfairly on grounds of marital status.''