February 13, 2017

Denying unmarried partners access to survivor’s pension is unlawful discrimination

Last week, the Supreme Court ruled in favour of a woman who was denied survivor's benefits under her late partner's pension scheme because her partner had failed to nominate her as his cohabiting partner under the scheme rules. If the couple had been married, nomination would not have been required. This case highlights the need to ensure that pension schemes do not discriminate on grounds of marital status.

Mrs Brewster had brought a claim against both the administrators of the scheme and the government department that introduced the nominating requirement on the basis that the requirement unlawfully discriminated against unmarried partners. The Supreme Court has now ruled that the nomination requirement amounted to discrimination and Mrs Brewster is entitled to receive a survivor's pension from the scheme.


Mr McMullan was employed in the public sector and was a member of the Local Government Pension Scheme Northern Ireland (the 'Scheme'). The Scheme was administered by the Northern Ireland Local Government Officers' Superannuation Committee (NILGOSC). Under the relevant regulations governing the pension scheme a cohabiting surviving partner only became eligible for the payment of a survivor's pension if: (1) the partner had lived with the member as a couple for two years; (2) the partner was financially dependent on the member or they were both financially interdependent; and (3) the surviving partner had been nominated by the member on a form which had to be sent to NILGSOC.

Mrs Brewster had lived with her partner, Mr McMullan, for ten years prior to his unexpected death in late 2009. When he died, Mr McMullan left no will and the couple did not have any children together. When Mrs Brewster tried to claim her survivor's pension under the Scheme, NILGOSC refused to pay it because they had not received the form from Mr McMullan nominating Mrs Brewster as his partner. Mrs Brewster then applied to judicially review this decision, arguing that this requirement constituted unlawful discrimination under article 14 of the European Convention of Human Rights and Fundamental Freedoms (ECHR); when read in conjunction with article 1 of the First Protocol (A1P1) to ECHR; which gives individuals the right to the peaceful enjoyment of their possessions without being unlawfully discriminated.

Mrs Brewster initially won her case in the High Court, where the judge said that it was "irrational and disproportionate to impose a disqualifying hurdle of this kind". On appeal the decision was reversed by the Court of Appeal.  Mrs Brewster then appealed to the Supreme Court.

The Supreme Court analysed the reason why the "nomination requirement" had been included and they were unable to see why it was still present in the 2009 regulations. The equivalent local government schemes in England, Scotland and Wales previously had a nomination requirement for unmarried partners to qualify for a survivor's pension but it was removed in 2014.

The Supreme Court recognised that cohabiting partners had to prove a genuine and subsisting relationship in order to qualify for the survivor's pension but found that the nomination requirement did not add anything to the evidential hurdle that a couple would have to meet in any event. The nomination requirement did help prove that the cohabiting survivor partner was entitled to the survivor's pension i.e. the couple have lived together for a sufficiently long period and that one is financially dependent or interdependent on the other. But the Supreme Court considered that being required to make such a "public declaration" added nothing to the question of whether the surviving partner was entitled to the pension.

When deciding whether the requirement amounted to discrimination, the Supreme Court recognised the survivor's pension was a "possession" and the issue was whether the requirement could be legally justified. The courts will generally respect the policy choices of public bodies in relation to social or economic matters unless it was made “manifestly without reasonable foundation”. However, the court found that Department of the Environment for Northern Ireland had failed to consider any socio-economic factors or the nature discriminatory characteristic (i.e. marital status) when they introduced the requirement and could therefore not legally justify retention of the nomination requirement.

On this basis, The Supreme Court allowed the appeal and made a declaration that the nomination requirement for Mrs Brewster and Mrs McMullan be disapplied so that Mrs Brewster should be allowed to receive a survivor's pension under the Scheme.


Whilst this decision brings Northern Ireland in line with the equivalent regulations for local government schemes in England, Scotland and Wales, which treat unmarried members equally, it also is likely that it will have a wider impact on most of the UK’s other public sector pension schemes. Many such schemes still require unmarried members to sign nomination forms and the lawfulness of such a requirement must now be doubtful.  A nomination form is also a requirement for Pension Protection Fund compensation for a co-habitee, but there is an alternative route for compensation to be provided if the co-habitee was financially dependent or interdependent on the member and which may be sufficient to mean that the regulations are not discriminatory.

As mentioned in the judgment, most large occupational pension schemes in the private sector now provide survivors’ benefits for the unmarried partners, although as this case was concerned with human rights law it would not be relevant to private sector schemes.  However, the question of survivors pensions continues to be an area where the boundaries are being challenged and later on this year the Supreme Court is to hear the appeal in Walker v Innospec concerning civil partnerships and whether it is lawful to restrict the survivor's pension to pensionable service since 5 December 2005 only, the date on which the Civil Partnership Act 2004 came into force.

Click on the link below to read the full judgement

In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland)