Public sector focus - an analysis of the decision of the Supreme Court in the Brewster case.
The case centres around use of nomination forms in the context of unmarried partners – the issue was whether the nomination form requirement (which did not apply to spouses or civil partners) could be objectively justified.
Ms Brewster and Mr McMullen had co-habited for ten years. They were engaged to be married. Mr McMullan had been an active member of the Local Government Pension Scheme (LGPS) administered by the Northern Ireland Local Government Officers' Superannuation Committee (NILGOSC). He died suddenly and without a nomination form. Ms Brewster was disqualified from receiving a pension solely because Mr McMullan had not nominated her to receive benefits in accordance with the relevant LGPS regulations.
First instance decision
At first instance, Ms Brewster succeeded in her application for judicial review, where she claimed her rights had been breached under Article 14 of the European Convention on Human Rights (ECHR), in conjunction with Article 1 of the First Protocol of the ECHR. It was held that the requirement for nomination constituted an unlawful difference in treatment in comparison with those who were married or in civil partnerships.
Court of Appeal in NI
An appeal was brought by NILGOSC (amongst others). The appeal sought to overturn the successful judicial review application brought by Ms Brewster, arguing that the nomination requirement was crucial and it was wrong to regard it as irrational for a member to wish to disentitle his partner who otherwise satisfied the conditions for the pension benefit.
The appeal was allowed and the order of the High Court reversed. It was noted that current ECHR jurisprudence still differentiated between the status of those in cohabiting relationships and those within a marriage or civil partnership.
Considering the position under the ECHR, the Court of Appeal held that the different treatment between couples who were cohabitees and couples who were married or civil partners was not based on personal characteristics that could not be changed (such as sex and race). Rather the decision to give cohabitees a statutory right to a survivor's pension raised important social and economic policy issues which were matters for Parliament. Nomination was accepted to be an important expression of the member's wishes, in the absence of a certificate or marriage or civil partnership.
Further, it was felt that the nomination form requirement had been developed as a result of careful consultation and negotiation by local government bodies and stakeholders, including the Equality Commission. Evidence was also taken into account as to, amongst other things, the efficiencies in costings and funding projections and a policy view that nomination was an essential component in providing the clear evidence necessary to qualify as a cohabiting partnership. Accordingly, the Court of Appeal decided there was no discrimination under the ECHR.
This was not the end of the story as Ms Brewster appealed to the Supreme Court and won.
The Supreme Court decision was unanimous - the nomination requirement was not objectively justified.
Although many public service schemes are now reviewing their nomination form requirements, the case has limited impact for private sector employers/pension schemes for the following reasons:
Nomination forms for pensions in private sector schemes are rare, and usually only relevant to the payment of discretionary lump sum benefits.
The ECHR is different to the Equality Act 2010, so the type of claim here (brought in relation to a public sector scheme) is different to a claim that a private sector scheme might see under the Equality Act 2010 – this is because being unmarried is not currently a protected characteristic under the Equality Act 2010.
However, trustees may still wish to remind members of:
- The survivor benefits provided by their scheme (including the eligibility criteria).
- The importance of keeping expression of wish/nomination forms up to date. Outdated nominations/expressions of wish are a frequent cause for complaint, including to the Pensions Ombudsman.
Schemes should also be prepared for any follow-up queries about the survivor benefits they provide, especially if there is any perception by members that the rules are unfair.