Brewster, Re Application for Judicial Review (Northern Ireland) [2017] UKSC 8

Denise Brewster was denied a survivor's pension under the Northern Ireland Local Government Pension Scheme after her partner died suddenly, because he had not nominated her in writing. The Supreme Court held the nomination requirement unlawfully discriminated against unmarried cohabitants contrary to Article 14 ECHR.

Facts

Denise Brewster and William ‘Lenny’ McMullan had cohabited for around ten years and became engaged on Christmas Eve 2009. Two days later, Mr McMullan died suddenly, aged 43, intestate and without children. He had been employed by Translink for approximately 15 years and was a member of the Local Government Pension Scheme Northern Ireland, administered by NILGOSC pursuant to the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009.

Regulation 25 of the 2009 Regulations required, as a condition for an unmarried surviving cohabitant to receive a survivor’s pension, that the deceased scheme member had nominated the partner in writing. The cohabitant additionally had to prove a continuous two-year cohabiting relationship, mutual eligibility to marry, exclusivity, and financial dependence or interdependence. Married partners and civil partners faced no nomination requirement. NILGOSC stated no nomination form had been received from Mr McMullan and refused to pay Ms Brewster a survivor’s pension. The case proceeded on the basis no nomination had been made.

At first instance, Treacy J held the nomination requirement was an ‘instrument of disentitlement’ and incompatible with Article 14 ECHR read with Article 1 of the First Protocol (A1P1). The Court of Appeal (Northern Ireland), by majority, allowed the respondents’ appeal, finding the requirement justified. Notably, equivalent nomination requirements had been removed from the corresponding English/Welsh scheme (2013) and Scottish scheme (2014).

Issues

The sole disputed issue was whether the imposition of a nomination requirement on unmarried cohabiting survivors, as a precondition for entitlement to a survivor’s pension under the 2009 Regulations, constituted unjustified discrimination contrary to Article 14 ECHR read with A1P1. It was common ground that A1P1 was engaged, that cohabitant status fell within Article 14, and that surviving cohabitants under regulation 25(6)(b) were in an analogous position to surviving spouses and civil partners.

Arguments

Appellant

Ms Brewster argued that the nomination requirement added nothing to the objective evidential conditions already imposed under regulation 25(3) and was an instrument of disentitlement disproportionate to any legitimate aim. She contended that retrospective justifications offered by the department deserved limited deference because they had not informed the original decision.

Respondents

DENI and NILGOSC argued that the policy aim was to permit some cohabitants in defined circumstances to obtain pension provision equivalent to spouses, that the nomination requirement provided formality, public affirmation, testamentary significance, a bright-line rule promoting workability and certainty, and fell within a wide socio-economic margin of appreciation. They relied on the ‘manifestly without reasonable foundation’ test from Stec v United Kingdom.

Judgment

Lord Kerr (with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed) allowed the appeal.

The aim of the provisions

Lord Kerr rejected DENI’s characterisation of the aim as merely permitting some cohabitants to access pensions. The genuine aim of including cohabitants in the scheme must have been to eliminate unjustified differences of treatment between surviving cohabitants in stable long-term relationships and surviving spouses or civil partners. The error in the respondents’ submission was to confuse the aim with the means employed to achieve it.

The function of nomination

Because regulation 25 already required a surviving cohabitant to demonstrate independently a continuous two-year qualifying relationship, financial dependency or interdependence, exclusivity and capacity to marry, the nomination requirement added nothing of evidential value. Formality, public affirmation, and testamentary significance were not inherent virtues capable of justifying differential treatment. Arguments about administrative cost and actuarial workability were unsupported by evidence and undermined by the fact the English, Welsh, and Scottish schemes had since dispensed with such a requirement.

Origin of the requirement

The court found that no independent evaluation of the need for the nomination requirement had been undertaken in Northern Ireland. The driver had been a desire to maintain parity with the England and Wales scheme. NILGOSC had itself flagged potential inequalities arising from the requirement during consultation, yet no contemporaneous assessment took place.

Standard of review

Lord Kerr accepted that the ‘manifestly without reasonable foundation’ test applied, but observed that where justifications are advanced post hoc and were not present to the decision-maker’s mind, closer judicial scrutiny is appropriate. He cited Belfast City Council v Miss Behavin’ Ltd in support. Retrospective rationalisations may attract weight if made bona fide within the decision-maker’s expertise, but socio-economic immunity must be more critically examined where no real policy choice was made at the time.

Application of the proportionality test

Applying the four-stage test from Bank Mellat (No 2), Lord Kerr concluded that there was no rational connection between the objective (eliminating unjustified discrimination between cohabitants and married/civil partners) and the imposition of the nomination requirement. The measure also failed the less-intrusive-means and fair-balance limbs.

Implications

The Supreme Court made a declaration disapplying the nomination requirement and held Ms Brewster entitled to a survivor’s pension. The decision affirms that survivor pension entitlements engage A1P1 and that cohabitant status is a relevant status under Article 14 ECHR.

The judgment is significant in clarifying the approach to retrospective justifications: while the ‘manifestly without reasonable foundation’ test continues to apply in socio-economic measures, where reasons advanced were not considered by the decision-maker at the time, the court will scrutinise them more closely and will not extend automatic deference. A bare assertion that a measure falls within the socio-economic field will not shield it from review unless a real policy choice was at stake.

The decision affects public sector pension administrators and surviving cohabitants of public service employees, particularly in Northern Ireland, where the scheme had not mirrored the reforms already enacted in England, Wales, and Scotland. It illustrates that procedural opt-in mechanisms imposed solely on cohabitants may amount to unjustified discrimination where the cohabitant has independently established the substantive qualifying conditions equivalent to those imposed on spouses and civil partners.

The judgment is confined to the particular scheme, the particular evidential requirements already imposed on cohabitants, and the absence of any contemporaneous justification for the nomination requirement. It does not lay down a general rule that all nomination or opt-in mechanisms are incompatible with Article 14, but it emphasises that such mechanisms must be justified by reference to a genuine, rationally connected aim properly considered at the time of their imposition.

Verdict: Appeal allowed. The Supreme Court declared that the nomination requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 be disapplied and that Ms Brewster is entitled to receive a survivor’s pension under the scheme.

Source: Brewster, Re Application for Judicial Review (Northern Ireland) [2017] UKSC 8