UK supreme court backs woman’s right to receive late partner’s pension

A Northern Ireland woman who was refused payments from her former partner’s pension has won her battle to extend benefits automatically to those who are unmarried.

Denise Brewster, from Coleraine, had been living with Lenny McMullan for 10 years. They were engaged on Christmas Eve 2009 but he died suddenly in the early hours of Boxing Day morning.

Her victory at the supreme court marks a significant extension of the rights of unmarried cohabitees. It brings the Northern Ireland public pensions scheme into line with changes already made in England, Wales and Scotland and could also advance the rights of millions of families across the UK seeking equal treatment for cohabiting couples in other areas such as the tax regime. The five justices said that the refusal to pay her the pension was unlawful.

McMullan had worked for 15 years for Translink, which runs Northern Ireland’s public transport services. He had paid into Northern Ireland’s local government pension scheme.

It required members, using a designated form, to nominate cohabiting partners before they would become eligible for survivors’ pensions. That nomination had not been made for Brewster and she was denied the pension.

Brewster’s lawyers had argued that the requirement of the nomination form was disproportionate and in effect discriminatory.

In their unanimous judgment, the five supreme court justices said the requirement for a nomination form should be removed from the pension scheme.

Helen Mountfield QC, representing Brewster, 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.

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 longstanding cohabitant and a married or civil partner of a scheme member”.

He added: “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, at least, highly questionable.”

The number of unmarried couples living together has risen rapidly in recent decades. In 1996, there were fewer than 3 million people cohabiting; by 2015, the number had risen to more than 6 million.

The former pensions minister Sir Steve Webb, who is now a director of the pension firm Royal London, welcomed the ruling. “It is totally unacceptable,” he said, “for cohabiting couples to be treated as second-class citizens. With more than 6 million people living together as couples and the numbers rising every year, this is an issue that needs to be addressed as a matter of urgency. We need pension scheme rules which reflect the world we live in today, and not the world of 50 years ago”.

Shlomit Glaser, a solicitor specialising in family law at the London firm Glaser Jones said: “This is an important breakthrough for cohabitees in accessing their partner’s pensions, putting them in the same position as a married person on the death of a partner. It has wide implications for public sector schemes. The supreme court emphasised that no convincing economic or social reasons had been put forward for the policy of excluding a cohabitee, solely because a form had not been filled in.”

Barbara Reeves, a family law solicitor in the firm Mishcon de Reya, said: “Today’s judgment brings Northern Ireland in line with England, Wales and Scotland with regards to the rights a surviving cohabitee has to their partner’s pension.

“However, the decision brings into sharp focus the issue of what happens when a cohabitational relationship ends by separation rather than by death. Our legal system largely ignores the needs and obligations of the adult members of separated, unmarried, families. Although cohabitants do have some legal protection in several areas, cohabitation does not alter a couple’s legal status, unlike marriage and civil partnership.”

Source: The Guardian