On 8 February the Supreme Court handed down its unanimous decision in the judicial review case brought by Denise Brewster regarding the refusal of the Northern Irish Local Government Pension Scheme (NI LGPS) to pay her a survivor’s pension. The court agreed that the requirement for a surviving cohabiting partner to be included on a nomination form completed by the deceased member in order to qualify for a survivor’s pension, despite otherwise meeting the criteria for payment of that pension, is discriminatory and must be disapplied.
This decision could have significant implications for other UK public service pension schemes, since most of them contain (or have contained) this nomination form requirement, including the English & Welsh LGPS, Scottish LGPS, firefighters’ pension scheme, NHS pension scheme, teachers’ pension scheme, police pension scheme and the civil service scheme. It is less likely to be of interest to private sector schemes, given that nomination requirements of this kind are relatively uncommon outside the public sector.
So what does this decision mean in practice? Although the focus in Denise Brewster’s case was quite narrow, it will involve schemes revisiting all cases where a claim for a survivor’s pension has been refused on the basis that there was no nomination form in place. Since the provisions providing for cohabitants’ pensions were only introduced relatively recently this may not mean reopening all historic death cases. However, given the number of members in public sector schemes this is still likely to be a significant exercise.
Although the English & Welsh and Scottish LGPS's changed their rules in 2014 to remove the requirement for a nomination form (in respect of deaths after April 2014), they will still need to revisit past deaths since they may have refused to pay survivors’ pensions between 2008 and 2014 because of the lack of a completed nomination form.
However, cohabiting couples should not assume that this decision means a survivor’s pension will automatically be payable in all cases. The court judgment strikes down the requirement for a nomination form, but the rest of the rules will still apply. Therefore any factual criteria for payment of a survivor’s pension will still need to be met (for example, being in a cohabiting relationship for at least two years prior to the member’s death).
The Treasury has reportedly stated it will need to examine the implications of this decision carefully, and no doubt public sector schemes will be contacting potentially affected members in due course. However, in the meantime it doesn’t hurt for current members to contact their schemes to ensure that its records show they are in a cohabiting relationship.
More importantly, if cohabitees have been refused (or did not try to claim) survivors’ pensions in the past solely because a nomination form wasn't completed they should ask their scheme to revisit their case in light of the Supreme Court’s decision. Although schemes will be reviewing past deaths this may take time, so it could speed up the process if affected cohabitees take the initiative and get in touch first.
The Northern Irish department responsible for the NI LGPS has said it will now pay the pension to Denise Brewster as quickly as possible, and is encouraging any surviving co-habiting partner of a deceased scheme member who was refused a pension because of the lack of a nomination form to make contact with them.
Charmian Johnson is a pensions partner at Eversheds Sutherland