In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland)

A survivor’s pension scheme may distinguish between married or civil partners and unmarried cohabitants only where the difference is objectively justified. A requirement that a cohabitant be formally nominated was unjustified where separate conditions already established the existence, duration and financial character of the relationship.

In reviewing discrimination within socio-economic policy, the court may accord weight to an expert decision-maker’s judgment. Greater scrutiny is appropriate where the alleged justification was devised after the measure was adopted, lacked supporting evidence or did not reflect a genuine policy choice. The measure must satisfy each stage of the proportionality test. A condition having no rational connection with the scheme’s equality objective must be disapplied.

Mr McMullan was a member of the Northern Ireland Local Government Pension Scheme. After his death, his long-term cohabiting partner, Ms Brewster, was refused a survivor’s pension because she had not been nominated under regulation 25 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009.

Treacy J allowed her judicial review claim and declared the nomination requirement incompatible with article 14 of the Convention, read with article 1 of the First Protocol: [2012] NIQB 85. The Court of Appeal allowed the respondents’ appeal by a majority, Girvan LJ dissenting: [2013] NICA 54.

The Supreme Court considered whether requiring nomination from a qualifying cohabitant, when no equivalent requirement applied to a spouse or civil partner, was objectively justified and proportionate.

1. The appeal was allowed unanimously. Lord Kerr delivered the judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed. The nomination requirement was to be disapplied, and the appellant was entitled to receive a survivor’s pension.

2. The denial of the pension fell within article 1 of the First Protocol. Cohabitation was a relevant status under article 14, and a surviving unmarried partner satisfying regulation 25(6)(b) was in an analogous position to a surviving spouse or civil partner. The remaining question was whether the difference in treatment was objectively justified.

3. The relevant objective of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 was to remove unwarranted differences between long-term cohabitants and married or civil partners. The respondents’ suggested objective—permitting only some cohabitants to obtain equivalent provision—confused the statutory means with its end.

4. Regulation 25 independently required proof that the relationship had existed for the prescribed period and met the requirements concerning marriage or civil partnership capacity, exclusivity and financial dependence or interdependence. Nomination added nothing to that evidential inquiry. Nor did a public affirmation, the deceased member’s wishes or the absence of formal legal status provide a legitimate explanation for the condition.

5. Objective justification is assessed by the court, without simply substituting its policy judgment for that of the decision-maker. A wide area of discretionary judgment may be appropriate for genuine socio-economic choices. Where the asserted reasons were formulated after the measure was adopted, however, closer scrutiny is required. Bona fide retrospective judgments within the decision-maker’s expertise may still receive respect according to their cogency and evidential support.

6. The court assumed that the applicable standard was whether the measure was manifestly without reasonable foundation. That formulation did not determine the appeal. The department had not undertaken an independent assessment of the nomination requirement, and its later assertions about formality, administration, workability and legal certainty lacked concrete evidence.

7. Applying the four-stage proportionality analysis, there was no rational connection between eliminating unequal treatment and requiring nomination. Less intrusive arrangements were available because the scheme already required objective proof of the qualifying relationship. The nomination condition also failed the necessity and fair-balance stages. It therefore constituted unjustified discrimination contrary to article 14 read with article 1 of the First Protocol.

1. United Kingdom Supreme Court: The appeal was allowed unanimously: [2017] UKSC 8. The nomination requirement was disapplied and the appellant was declared entitled to a survivor’s pension.
2. Court of Appeal in Northern Ireland: By a majority, Girvan LJ dissenting, the court allowed the respondents’ appeal and held that the nomination requirement had not been shown to lack reasonable justification: [2013] NICA 54.
3. High Court of Justice in Northern Ireland: Treacy J declared the nomination requirement incompatible with article 14, read with article 1 of the First Protocol, and quashed the refusal of a pension: [2012] NIQB 85.