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

The Supreme Court allowed the appeal and disapplied the nomination requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (regulations 24 and 25). The court held that the absolute requirement that a cohabiting partner be separately nominated by a scheme member before becoming eligible for a survivor's pension constituted unjustified differential treatment under article 14 ECHR read with Article 1 of the First Protocol (A1P1). Applying the established proportionality / justification enquiry (and the applicable margin of appreciation), the court found no rational connection between the objective of eliminating unjustified difference of treatment and the nomination requirement, and that post hoc justifications were unsupported by evidence. The measure therefore failed the test of being "manifestly without reasonable foundation" and was disproportionate.

Background and parties: Denise Brewster and William ("Lenny") McMullan lived together for about ten years and became engaged shortly before his sudden death in December 2009. Mr McMullan was a member of the Local Government Pension Scheme Northern Ireland administered by NILGOSC and governed at the time by the 2009 Regulations made by the Department of the Environment for Northern Ireland (DENI). The 2009 Regulations allowed a surviving "nominated cohabiting partner" to receive a survivor's pension but required a nomination by the member and proof of specified cohabitation conditions.

Nature of the claim and relief sought: Ms Brewster sought judicial review of NILGOSC's refusal to pay her a survivor's pension on the basis that, absent a valid nomination, she was barred. She argued that the nomination requirement unlawfully discriminated against unmarried cohabiting partners contrary to article 14 ECHR read with A1P1.

Procedural history: Treacy J (Northern Ireland) held the nomination requirement incompatible with article 14 read with A1P1 and quashed NILGOSC's refusal ([2012] NIQB 85). NILGOSC and DENI appealed and the Northern Ireland Court of Appeal allowed the appeal by majority ([2013] NICA 54). The matter proceeded to the Supreme Court.

Issues framed: (i) Whether the denial of a survivor's pension engaged A1P1 and whether the appellant had a relevant "status" for article 14; (ii) whether the regulation 25 nomination requirement was objectively justified and proportionate, having regard to the appropriate margin of appreciation and the test whether the measure was "manifestly without reasonable foundation"; (iii) whether post hoc justifications offered by DENI and NILGOSC could sustain the measure.

Court's reasoning: The court accepted that A1P1 was engaged and that a surviving cohabitant was in an analogous position to a surviving spouse or civil partner for article 14 purposes. The objective of the provisions was identified as removing unjustified difference of treatment between long‑term cohabitants and married/civil partners. The court analysed the evidential and policy background (including consultations, the Law Commission's work, and developments in England, Wales and Scotland) and found that the nomination requirement added nothing to the separate evidential tests in regulation 25(3) and (6)(b). There was no contemporaneous assessment of its necessity when the 2009 Regulations were made; the principal driver was parity with Great Britain. Post hoc justifications (formality, testamentary significance, administrative workability, actuarial convenience, and a supposed need for a "bright‑line" rule) were unsupported by evidence and had not guided the original decision. Applying the proportionality and "manifestly without reasonable foundation" standards, the court found no rational connection between the objective and the nomination condition, and that the requirement failed the proportionality balance. The court emphasised that post hoc reasons, while not automatically irrelevant, required close scrutiny where they had not informed the original decision.

Remedy and implication: The court disapplied the nomination requirement in the 2009 Regulations as applied to Ms Brewster and declared she was entitled to a survivor's pension under the scheme. The judgment observed the wider policy context including removal of the opt‑in requirement in England and Wales (2013) and Scotland (2014) and criticised the lack of evidence-based justification for retaining the requirement in Northern Ireland.

The appeal was allowed. The Supreme Court held that the nomination requirement in regulations 24 and 25 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 was not objectively justified under article 14 ECHR read with A1P1. There was no rational connection between the stated aim of placing long‑term cohabitants on an equal footing with married or civil partners and the nomination requirement; post hoc justifications were unsupported by contemporaneous evidence. The nomination requirement was therefore disapplied and the appellant found entitled to a survivor's pension.

First instance: Treacy J ([2012] NIQB 85) declared the nomination requirement incompatible with article 14 ECHR read with A1P1 and quashed NILGOSC's refusal. Northern Ireland Court of Appeal: NILGOSC and DENI appealed; by majority the Court of Appeal allowed the appeal ([2013] NICA 54). Supreme Court: appeal by the appellant allowed ([2017] UKSC 8).