B, who had lived with her partner for 10 years prior to his death, was refused a survivor’s pension under the Northern Ireland local government pension scheme because he had not completed a form  nominating her as his survivor, as required by the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009. She brought an application for judicial review of the decision, and the High Court held that the requirement for a partner to be nominated was incompatible with Article 14 of the European Convention on Human Rights, which prohibits discrimination, on the basis that married or civil partner survivors are not required to be nominated. It also held that the provision was incompatible with Article 1 of Protocol 1 which provides for the right to peaceful enjoyment of possessions.

The Court of Appeal overturned the High Court’s decision on the basis that the requirement in the 2009 Regulations was “justified and proportionate”. B appealed to the Supreme Court.

Supreme Court decision

The Supreme Court unanimously reinstated the High Court’s decision and held that the provision could not be objectively justified. The Northern Ireland government had argued that the reason for the nomination requirement was to establish the existence of a cohabiting relationship that was equivalent to marriage or civil partnership. The Supreme Court noted however that the 2009 Regulations already required the surviving partner to establish such a relationship, and the nomination form added nothing to that. Further, it noted that there was no equivalent requirement in the local government pension schemes in England and Wales.

The High Court also found that there was no rational connection between the objective, which was to remove the difference in treatment between a longstanding cohabiting partner and a married or civil partner, and the nomination requirement. There was no concrete evidence put forward by the government to support its arguments and the nomination requirement therefore could not be justified.

What to take away

This decision will have implications for many UK public sector pension schemes, including the NHS Pension Scheme, which contain the requirement to nominate a survivor where the scheme member does not have a spouse or civil partner. Cohabiting partners who can provide the necessary evidence of their status (in accordance with the relevant scheme rules) will be able to claim a survivor’s pension, and the requirement for a nomination form will be disapplied.

For further information on how this issue might affect your organisation, please contact Raj BasiAndrew Uttley or Bridget Prosser.