This week we have seen the Supreme Court unanimous ruling which has allowed an appeal by appellant Denise Brewster and stated that the requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 that the appellant and her late partner, William McMullan, should have made a nomination to the pension scheme should be disapplied. Subsequently, Ms Brewster will be entitled to receive a survivor’s pension under the scheme.
This case concerns a requirement in the Local Government Pension Scheme that cohabiting partners who are not married must be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. The survivor must also show that he or she has been a cohabitant for two years before the date on which the member sent the nomination and has been in that position for two years before the date of death. There is no similar nomination requirement for married or civil partner survivors.
Denise Brewster, lived with her partner, William McMullan, for ten years before December 2009. They became engaged in December 2009 and Mr McMullan died two days later. At the time of his death, Mr McMullan was employed by Translink, a public transport operator, for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the Local Government Pension Scheme (the scheme). It was the knowledge of Ms Brewster that Mr McMullan had completed a form in which he nominated her to be eligible for a survivor’s pension, but the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC), which administers the scheme, says it did not receive any form. Accordingly, NILGOSC refused to pay her a survivor’s pension.
The High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with article 14 of the European Convention on Human Rights and the Court of Appeal allowed the respondents’ appeal, finding that the nomination requirement was neither unjustified nor disproportionate. As a consequence the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. Ms Brewster once aware of the changes, applied to the Court of Appeal for her appeal to be re-opened.
Apparently the meaning behind the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership and identify the wishes of the scheme member. The objective behind this requirement is thought to have attempted to prevent unwarranted differences of treatment between married or civil partner survivors on the one hand and unmarried long term partners in a stable relationship on the other.
Jacksons understand that many couples do not marry and would rather cohabit. We offer advice on protective planning to ensure assets and wishes are protected when cohabiting. For more information or advice on cohabitation agreements contact Louisa Bestford at lbestford@jacksons-law.com or phone 0191 2069617 or Emma Canham at ecanham@jacksons-law.com or phone 0191 2069621.
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