A landmark decision in the Supreme Court regarding pension rights is likely to impact upon discrimination against cohabitees in a range of areas extending well beyond the pension rights issues involved in the case itself.

The matter before the Supreme Court earlier this month [February 2017] was brought on appeal from the Northern Ireland High Court by Denise Brewster, who had lived with her partner, William McMullan, for ten years until his unexpected death in December 2009. The couple had become engaged shortly before Mr McMullan’s death. Mr McMullan had been a member of Northern Ireland’s local government pension scheme for 15 years. It was a requirement of the pension scheme that unmarried scheme members complete a form nominating a beneficiary if they wished that person to receive their pension after their death. This rule applied in cases where cohabitation had lasted for at least two years. Mr McMullan failed to file this form, and Ms Brewster was denied a survivor’s pension on the grounds that they were unmarried.

Ms Brewster applied for judicial review of the Superannuation Committee’s decision, citing a contravention of article 14 of the European Convention for the Protection of Human Rights, which prohibits discrimination. She argued discrimination on the basis that a married scheme member was not required to complete the nomination form. The High Court agreed with her and she was awarded her late partner’s pension. However, this decision was reversed on appeal to the Court of Appeal.

Ms Brewster then took her appeal to the Supreme Court, who ruled that the scheme’s regulations at the time already required a surviving partner to establish that a subsisting long-term relationship existed, in the form of the two-year cohabitation rule, and therefore the nomination requirement added nothing to the evidential hurdle. The discriminatory effect of this further burden could not be justified. The ruling meant that Ms Brewster was entitled to receive a survivor’s pension, as well as determining that the pension scheme rules were unlawful.

This decision is likely to have a significant impact in relation to both pensions and other areas where cohabitees are dealt with less favourably than their married counterparts. There are around 3.3 million cohabiting couples and families in the UK – many making a conscious decision not to marry, others because they can’t afford to. There is a general belief that “common-law” partners have the same rights as married couples, but this is far from the case. A cohabiting couple’s rights are limited on relationship breakdown and death. In terms of pension rights, the UK’s public sector pension schemes currently have around 12 million members. Whilst the requirement for formal nomination of a cohabiting partner has already been removed for the Local Government Pension Scheme in England, Wales and Scotland, teachers, some civil servants and NHS employees currently remain subject to the formal nomination procedures.

The impact of the Supreme Court decision on such schemes is significant and is likely to result in changes to these schemes to ensure that surviving partners are protected on death. Following this decision, members of pension schemes will rightly expect their employers to operate schemes which do not discriminate unfairly on grounds of marital status.

If you are a cohabitee seeking legal advice or representation then you can contact us on 01823 354545.

Cohabitee pension rights ruling