The judgment :
In the Matter of an Application by Denise Brewster for Judicial Review (Northern Ireland)  UKSC 8
It’s impossible not to feel sympathy for Denise Brewster’s shattering transition from celebrating her engagement to mourning her fiance’s death. She was in her early 30s and had lived with Lenny McMullan for about ten years, bought a house with him in 2005 and become engaged to marry him on Christmas Eve 2009. Just two days later, at the age of only 43, he died suddenly and unexpectedly at their home in Coleraine, Northern Ireland.
The pension scheme
At Lenny McMullan’s death he was and had been for about 15 years an employee of a company which provides Northern Ireland’s public transport services. Through his employment he was a member of the Local Government Pension Scheme Northern Ireland, making contributions into the scheme from his salary (as Denise Brewster did from hers, as it happens). If he had lived to retirement age, he would have been entitled to a pension from the scheme. The scheme was governed by 2009 regulations made by statutory instrument by the Department of the Environment for Northern Ireland. They provided, for the first time in the life of the pension scheme, that someone in Denise Brewster’s position as an unmarried cohabitant of a member of the scheme could be entitled to survivor’s benefits under the scheme on their partner’s death. But the regulations required two things before paying a survivor’s benefit to a cohabitant:
- evidence of a qualifying relationship of cohabitation for a continuous period of at least two years before the member’s death, and
- the member having made an opt-in written nomination of the cohabitant to receive the benefit.
By contrast, a surviving spouse or civil partner of a scheme member was entitled to payment of survivor’s benefit as of right, without any need for nomination. There was no evidence that Lenny McMullan had made such a nomination, and the statutory body which was the scheme administrator refused to pay Denise Brewster any survivor’s benefit on his death.
In Denise Brewster’s own words on her Crowdjustice funding page:
“Had I been married to Lenny I would have benefited from his payments into his occupational pension through a survivor’s pension. However, I wasn’t married to Lenny, and because cohabiting partners have to fill out an additional form that they said we didn’t fill out, I am disqualified from receiving a survivor’s pension – even though I met all the other criteria. My case is simple: bureaucratic rules like this which discriminate against long-term cohabitees should not be permitted.
I don’t want another partner to go through what I have gone through. It is hard enough trying to come to terms with such a loss, without the additional financial and emotional burden. I don’t want other families to be denied what their partners would have wanted them to have.”
On 8 February 2017 the Supreme Court ruled in favour of Denise Brewster’s application for judicial review, and said that the pension scheme regulation which required Lenny McMullan to have made a nomination for her should be disapplied, so that she should be entitled to survivor’s benefit on his death.
The Supreme Court’s decision
At the heart of the judgment – which was a single reasoned speech by Lord Kerr, with whom the other four Justices of the Supreme Court who heard the case agreed, without adding any thoughts of their own – is the question “what is the function of requiring nomination [of a cohabitant as opposed to a surviving spouse or civil partner]?” Lord Kerr first considered whether the nomination served a purpose in conferring eligibility on a cohabitant, then discussed the policy behind the requirement for nomination, and ultimately considered as a matter of human rights law, whether the interference with Denise Brewster’s right to peaceful enjoyment of the survivor’s benefit to which she would otherwise have been entitled, was objectively justified and proportionate. He concluded that it was not.
The role of nomination in the survivor benefit structure of the scheme
The first step in analysis is one which would be just as applicable in a private law context – how do a set of rules in a document work and how are they to be interpreted if this is not clear? Lord Kerr’s analysis and conclusions make it very clear that for the purposes of the scheme, Denise Brewster needed to establish that she was a cohabitant and had been a qualifying cohabitant for a continuous period of at least two years immediately prior to Lenny McMullan’s death. In practice this meant providing documents and other evidence to the scheme administrators to prove that for that two year period:
– She was someone who was legally able to marry Lenny McMullen (i.e. not married to anyone else, or under the age of legal marriage), and
– They were living together as if they were husband and wife, and
– Neither she nor Lenny McMullen were living with anyone else as if they were husband and wife or civil partners, and
– Either she was financially dependent on Lenny McMullen or that they were financially interdependent
But these ‘proof’ requirements, were, as Lord Kerr said, “freestanding of the nominating procedure”. Nomination alone could not confer any benefit on a person who could not prove that they were an eligible cohabitant in this way.
The policy behind the nomination requirement
Lord Kerr’s judgment sets out the background to the legislative change which first made cohabitants eligible for survivor benefits in local government pension schemes – first in England and Wales, and then in Northern Ireland in 2009 – and the later change which removed the nomination requirement for cohabitants from local government schemes in England and Wales and in Scotland, but not in Northern Ireland. The evidence showed that the Northern Ireland scheme first introduced a nomination requirement to “maintain parity” with the scheme in Great Britain, although no reasoned justification or articulated policy objective could be established for introducing the nomination requirement into any of the schemes. The nomination requirement was removed from the schemes in Great Britain partly as a consequence of the litigation history in Denise Brewster’s case. She had been successful in the High Court in Northern Ireland, but the Court of Appeal in Northern Ireland had allowed an appeal by a majority, and the Supreme Court had then given her permission for a final appeal. The civil servants who were drafting the revised regulations asked consultees whether the nomination requirement should be retained in the light of the High Court’s decision, and the majority thought that it should not, as they thought it was overly burdensome when compared with the eligibility basis of married and civil partners. The nomination requirement was then removed “because it was considered to be unnecessary”.
Lord Kerr could find no real need for the nomination requirement to meet the stated policy objective:
“to ensure that the existence of a cohabiting relationship, equivalent to marriage or civil partnership was established in an objective manner and also that the wishes of the scheme member had been identified through the execution of a valid nomination form during his lifetime.”
He said that it was understandable that the regulations included a procedure designed to establish that a genuine and subsisting relationship existed, but that the process of nomination “added nothing to the evidential hurdle which a surviving unmarried partner of a scheme member had to face”. Finding out what the scheme member’s wishes were had nothing to do with entitlement. He was unimpressed by the after-the-event justification for the nomination requirement as being a reasonable and proportionate measure to establish entitlement of unmarried partners in view of the informality with which cohabiting relationships begin and end. He said
“there is no immediately obvious reason that some ersatz substitute for the legal formality of marriage or civil partnership would contribute to the assessment of a cohabitant’s entitlement to a survivor’s pension . . .that entitlement derives from the survivor having been in a longstanding relationship with the scheme member.”
The rest of the judgment explores whether the nomination requirement was reasonable and proportionate from a human rights perspective. Its starting point was that denial of a survivor’s pension is something within the ambit of Article 1 Protocol 1 of the European Convention on Human Rights, which provides that no one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law. This was not disputed by the scheme administrator or the Department of the Environment for Northern Ireland, who were the defendants in the case, nor did they dispute that the right to a pension can be a “possession” for these purposes, or that a surviving cohabitant was entitled under Article 14 to equal treatment in the exercise of her other Convention rights. The single area of dispute was whether the nomination requirement was objectively justified. The reasoning which led to the conclusion that it was not objectively justified has absolutely nothing to do with a shifting view on marriage, but considers issues of how far the State has a discretion in imposing a requirement such as the nomination process in an area of socio-economic policy.
Implications of the decision
As an application for judicial review, the Supreme Court’s judgment deals with the lawfulness of a decision made by a public body. As it is a case is about the lawfulness not just of a single decision affecting one individual or group of individuals, but of a rule in a pension scheme, it has implications for what are reported to be millions of members of other public sector pension schemes which have a similar requirement for nomination of a cohabitant to receive survivor’s benefits. It may also have implications for benefits and taxes which differentiate between the status marriage or civil partnership and cohabitation.
The judgment has no immediate direct implications for private sector pension schemes, as their administration doesn’t involve decision-making by a public body, so is not subject to judicial review, but no doubt private sector pension trustees will be considering its implications. The extent to which and the way in which private sector pension schemes provide benefits for people other than scheme members varies, and the Equality Act 2010 does not prevent an employer treating someone who is married or in a civil partnership more favourably than someone who is not. In a private sector pension scheme cohabitants may be entitled to a survivor’s pension as of right, or they may be included in a class of people who are all eligible to receive survivors’ benefits, but the trustees of the scheme decide at their discretion who should actually receive the benefits. Lord Kerr commented on this in his judgment, and on the fact that even in the late 1990s private sector schemes had largely been ahead of public sector schemes in providing survivors’ pensions to unmarried partners of scheme members.
Some private sector schemes allow members to nominate individuals into the class of potential recipients of some types of survivors’ benefits (in particular, a capital lump sum payable on the member’s death before their retirement date), or to nominate a preference for payment to individuals who are within the defined class. The trustees are not bound to follow these nominations. Where the scheme trustees have a discretion like this, nomination plays a completely different role from that in the local government scheme the Supreme Court was considering. This is because the nomination is an expression of the scheme member’s wishes about a decision which the trustees may, but do not have to, take in accordance with the expression of wishes. In the local government pension scheme that the Supreme Court was considering, the administrator had no such freedom to make decisions – either a claimant qualified as a surviving spouse or civil partner or nominated cohabitant, or they did not. There are pitfalls in the nomination process in private sector pension schemes too, which can cause anxiety and hardship, and not only to cohabitants. I have dealt with cases where a scheme member has died and their nomination hasn’t been up to date with the reality of their life, in which they are in a different relationship at their death from the one in which they were when they first made the nomination, or where they (or their solicitors) have failed to comply with precise formalities for making a valid nomination, or even where the trustees of the scheme have somehow mislaid or ignored a valid nomination and paid a lump sum death in service benefit to the member’s estate instead.
Commentary on the Supreme Court’s decision
On the same day as the Supreme Court’s judgment was published, the Guardian published an article under the category heading “Feminism: First Thoughts”, with the headline “Thank you, Lady Hale, for shifting the supreme court’s view on marriage”. It began:
“The UK supreme court has dealt another blow to the financial edifice that is intended to protect the institution of marriage. The five justices, including Brenda Hale, who has been a pioneering defender of the property rights of women, said Lenny McMullan’s employers were wrong when they refused to allow his partner to claim his pension after he died suddenly. The legal point was whether the surviving half of a couple who had been in a settled relationship could claim the dead partner’s pension, even if she (in this case) hadn’t been formally designated as the beneficiary. [The employer] and the Department of the Environment (Northern Ireland), no doubt terrified of the prospect of thousands of new claimants against the local government pension scheme, said not. Now the court has said they’re wrong. People in long-term relationships gain financial rights even if the relationship is not formally recognised.”
It’s difficult to know where to start with the misunderstandings in this. It reasonably accurately states what the legal point of the case was: whether a cohabitant could claim a survivor’s pension even if s/he hadn’t been formally designated as the beneficiary, but the author appears to have failed to grasp that the judgment was solely about whether the nomination requirement was a necessary and justifiable part of the scheme, and not about whether people in long-term relationships that are not “formally recognised” are entitled to financial rights at all. Denise Brewster’s claim to a survivor’s pension wasn’t refused by the employer and the Department of the Environment for Northern Ireland for some arbitrary penny-pinching reason – indeed it was not refused by them at all, but by the scheme administrator, acting not in the exercise of any case-by-case discretion or decision “on principle”, but in accordance with the rules which required nomination of a cohabitant. The Supreme Court did not say that the administrator was wrong in the way it went about the decision, but that the law was wrong to impose the requirement of nomination at all. It’s ironic in a way that the journalist imagines a motive: “terrified of the prospect of thousands of new claimants against the scheme”, when one of the weaknesses of the defence case was that the Supreme Court could find no policy objective for the objectionable nomination requirement at all. Indeed, Lord Kerr stated in so many words that the Department of the Environment for Northern Ireland “was not concerned about socio-economic choices when it decided to mimic the nomination requirement that was in place in England and Wales”.
As for the judge praised by the Guardian for her “pioneering defence of the property rights of women” (or in the words of the Daily Mail in commenting on a different case “a declared feminist”, as if feminism was something to be declared like former membership of the Communist party) there is no evidence at all of Lady Hale’s influence on the judgment, other than that she was one of the five Justices of the Supreme Court who heard the case and agreed with Lord Kerr’s judgment. And it’s misleading hyperbole to describe the judgment as “another blow to the financial edifice that is intended to protect the institution of marriage”, as if the Court was engaged in some kind of moral jousting tournament to favour cohabitation over marriage. The 2009 pension scheme regulations were intended to give cohabitants exactly the same rights as people who were married or in civil partnerhsips, but the Supreme Court decided that the nomination requirement for cohabitants meant that the scheme failed to achieve this desired equality.
The article goes on to say “The courts have taken a long time to get this far” before arguing for greater lawyerly and judicial diversity to bring to an end a “homogenous world view” which doesn’t recognise “the reality of how people live now”. This seems to stretch cause and effect far too far, and starts from a doubtful point in criticising the courts for taking “a long time to get this far” in the first place. As Lord Kerr described in the Supreme Court judgment, the Law Commission produced a report, based on two years’ work of research and consultation, on cohabitation and the financial consequences of relationship breakdown in 2007. It isn’t the courts which “have taken a long time to get this far”, but Parliament which has failed to legislate to give effect to the Law Commission’s proposals for cohabitants’ rights on separation, or to better rights on death than they currently enjoy, which are not equal to those of survivors of marriages and civil partnerships. Parliament has legislated to a certain extent though, as for over 20 years, cohabitants have been entitled to apply for reasonable provision for their maintenance on their partner’s death under the Inheritance (Provision for Family and Dependants) Act 1975, provided that they have been living in the same household as if they were the husband or wife (for whom the law changed on 1 January 1996) or civil partner (for whom the law changed on 5 December 2005) of the partner who has died. One of the first cases (Griffiths v. Treasury Solicitor  1 FLR 878) following this change in the law was decided in the autumn of 1998 by the current President of the Supreme Court, Lord Neuberger, when he was a High Court judge. He allowed a claim by a middle-aged cohabitant who was living with a man and sharing household expenses with him, but not in a sexual relationship with him at the time she was cohabiting with him, saying that the court should ask itself the question:
“whether in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife, but when considering that question one should not ignore the multifarious nature of marital relationships.”
This reflects a fairly liberal approach to cohabitation, not one seeking to narrow the eligibility threshold contained in the 1975 Act, and many cohabitants’ claims have been brought under the 1975 Act since then.
This is just one facet of the very large subject of cohabitation and the financial rights and obligations it can or should give rise to – but it illustrates how thoroughly misleading commentary even in newspapers aimed at an educated readership can be. As the question of what the financial rights and obligations of cohabitation might develop in the future is such a large one, perhaps it’s inevitable that any legal news which has any relevance to the issue is seized on to support a particular viewpoint or argument for the future. Expression of a view about the principle of equality (or not) as between cohabitation, marriage and civil partnership then leads to debate about what qualifies as cohabitation at all, and what, if any formal steps people should be expected to take to acquire rights as cohabitants. This is a problem that both Parliament and the courts have dealt with in various ways – one example being the eligibility definition in the Northern Ireland local government pension scheme regulations which made nomination unnecessary in Denise Brewster’s case.
In contrast to the Guardian, which on 13 February expressed the editorial view that “legal rights for cohabitees are now essential”, the Daily Telegraph’s comment on Denise Brewster’s case took as its starting point: “This week is Marriage Week, an annual celebration of the institution that was once the bedrock of society”. The Telegraph described the Supreme Court’s decision as a “technical point about the application of pension regulations [which] inevitably feeds into a wider debate about whether the law reflects the way people choose to live”. This is an improvement on the Guardian’s muddled description of the Supreme Court’s decision, although I think most lawyers would say that whether or not an interference with a person’s Article 14 ECHR rights is objectively justified is more than a “technical” point. The Telegraph’s tone is elegiac as it concludes that “the special status of marriage has diminished; but further moves to reform the treatment of cohabitees should be for Parliament, not judges.” It’s something of a conceptual leap to describe a decision by the Supreme Court as “a ruling on a technical point” in one sentence, and to base a warning against judicial activism on it in the next. It also rather overlooks the fact that the particular treatment of cohabitees that the Supreme Court was considering in Denise Brewster’s case was a reform made by Parliament, as the pension scheme regulations were made by statutory instrument. So both liberal and conservative comments on the case seem to essentially serve their own ends, and neither is rooted in a clear understanding of what the case which provoked the comment actually decided. This is a pity, particularly in a field where it’s recognised that many people are ignorant of the different rights that marriage and civil partnership confer when compared with cohabitation, and there’s a need for wider information. If either newspaper had wanted a summary of the issues written in the language of a non-lawyer, they couldn’t have done better than use Denise Brewster’s own words on her crowdfunding website – indeed on this occasion the often-criticised Daily Mail did exactly this, explaining the decision accurately and without a partisan critique of either the judges or the law which they applied.
 The Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 SI 2009/32
 See paragraph 24: “The question therefore arises, what is the function of requiring nomination? [Denise Brewster] says that it adds nothing to the process of establishing that the qualifying conditions have been met”
Feature pic by Pictures Of Money on Flickr – thanks!