In a judgment given on 8 February 2017 that has implications for other public sector pensions schemes with similar rules, the Supreme Court has overturned the ruling of the Court of Appeal in Northern Ireland that it was lawful for the Northern Ireland Local Government Pension Scheme to require members to nominate their unmarried partner in order for them to be eligible for a survivor’s pension. It remains to be seen whether the decision affects private sector occupational pension schemes with similar rules.
What was the dispute about?
This long running judicial review case concerns the Northern Ireland Local Government Pension Scheme, and the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (the 2009 Regulations).
Regulation 25 of the 2009 Regulations provided that a pension will be paid if the cohabiting partner of an unmarried scheme member meets certain conditions, including having lived with the member for two years, there being financial dependence, and the member having nominated them in writing.
LGPS member Mr McMullan had lived with his partner, Ms Brewster, for over ten years and they were engaged to be married when he suddenly died. He had not submitted a nomination form, and on that basis the scheme manager, the Northern Ireland Local Government Officers’ Superannuation Committee, refused to pay Ms Brewster a survivor’s pension. This was despite the fact that Ms Brewster satisfied all of the other requirements in the 2009 Regulations to qualify as a cohabiting partner. Ms Brewster brought a claim for payment of the survivor’s pension.
In November 2012, the High Court in Northern Ireland held that the requirement to submit a nomination form, constituted an unlawful difference in treatment in comparison with those who were married or in civil partnerships where no nomination was required. The court found this was contrary to Article 14 of the European Convention on Human Rights (ECHR) which prohibits discrimination. The decision was subsequently overturned by a two-thirds majority in the Northern Ireland Court of Appeal in October 2013.
Supreme Court decision
The Supreme Court has now overruled the Court of Appeal’s decision. It agreed with the High Court that the requirement in the 2009 Regulations to submit a nomination form breached Article 14 of the ECHR, and should be disapplied. It held that there was no rational connection between the objective in Regulation 25 to provide equality of pension access to cohabiting partners, and the imposition of the written nomination requirement. Ms Brewster was therefore entitled to receive a survivor’s pension.
The 2009 Regulations have subsequently been replaced, with effect from 1 April 2015, by the Local Government Pension Scheme Regulations (Northern Ireland) 2014, but the requirement for members to nominate a cohabiting unmarried partner in writing remains in the new legislation. Unless the Supreme Court’s decision is appealed to the European courts, we anticipate that the 2014 regulations will be amended to remove the nomination requirement. In contrast, the LGPS in England and Wales and the LGPS in Scotland removed the written nomination requirement when their current regulations were introduced from 1 April 2014, and 1 April 2015 respectively.
In the case of each LGPS scheme (and other public sector schemes which require a written nomination form in similar circumstances), cohabiting partners of deceased members, who like Ms Brewster have previously been denied payment of a survivors’ pension in the absence of a completed nomination form, will now want to consider if they have a claim to a survivors’ pension.
Article 14 of the ECHR has effect in domestic law under the Human Rights Act 1998, which on the face of it applies only to public bodies (e.g. scheme managers of public sector pension schemes). Some commentators argue that the provisions of the Human Rights Act 1998 can be interpreted as applying between private entities. It remains to be seen whether the Supreme Court’s decision will have any effect on the rules of any private sector occupational pension schemes which also contain a requirement to nominate a surviving cohabiting partner.