Elmes, R (on the application of) v Secretary of State for Communities and Local Government

Where subordinate legislation requires a nomination before a cohabiting partner can receive a survivor’s pension, the requirement must be read compatibly with Convention rights where possible. If incompatibility cannot otherwise be removed, the requirement may be disapplied under the Human Rights Act 1998.

A materially identical decision of the Supreme Court on Northern Irish regulations is binding on the Administrative Court. An administering authority cannot treat payment as unauthorised merely because the regulations have not been amended, where the nomination requirement has been disapplied by the proper interpretation of the existing scheme.

In judicial review proceedings, children whose pension entitlements would be directly reduced should ordinarily be identified as interested parties. The court must also be informed of matters capable of affecting its discretion to grant public law remedies.

This was a claim for judicial review by Ms Nicola Elmes against Essex County Council, with the Secretary of State for Communities and Local Government as interested party. Essex had refused her survivor’s pension because her deceased cohabiting partner had not completed the nomination required by regulations 24 and 25 of the Local Government Pension Scheme (Benefits, Membership Contributions) Regulations 2007.

While the claim was stayed, the Supreme Court decided Re Brewster; Brewster v Northern Ireland Local Government Officers’ Superannuation Committee [2017] UKSC 8, holding that an equivalent nomination requirement violated the Convention and had to be disapplied. By the hearing, Essex accepted that the requirement should be disapplied and that Ms Elmes met the other conditions, but sought a reasoned judgment rather than a consent order.

The court therefore considered the substantive meaning of the 2007 regulations, the effect of Human Rights Act 1998, the procedural basis for declaratory relief, and the position of affected children.

1. The court granted an incompatibility declaration, an entitlement declaration and an order requiring Essex to pay arrears of the survivor’s pension with interest. The nomination requirement in regulations 24 and 25 of the Local Government Pension Scheme (Benefits, Membership Contributions) Regulations 2007 was incompatible with article 1 of the First Protocol and article 14 of the Convention and had to be disapplied.

2. The Supreme Court’s reasoning in Re Brewster; Brewster v Northern Ireland Local Government Officers’ Superannuation Committee [2017] UKSC 8 was binding. The regulations were materially identical, and the factual difference that the Secretary of State had identified no good reason for the English nomination requirement strengthened the conclusion. The 2007 regulations therefore had to be read as requiring payment to an otherwise qualifying cohabiting partner, whether or not a nomination had been made.

3. The Human Rights Act 1998 requires primary and subordinate legislation to be read compatibly with Convention rights so far as possible. In the case of subordinate legislation, the incompatibility is not preserved merely because its wording has not been amended. Sections 3 and 6 did not provide a basis for treating payment as unauthorised. Sections 7 and 12 of the Superannuation Act 1972 were broad enabling provisions and did not require a nomination condition.

4. The concern that payment would trigger tax penalties was legally unfounded. Once the nomination requirement was disapplied, payment was authorised and required under the properly interpreted scheme. A court judgment was not legally necessary before Essex could pay, although the circumstances justified a reasoned judgment because there was a real practical need to clarify the position for similarly placed survivors.

5. CPR PD 54A paragraph 17 did not prevent a party from seeking an oral hearing about an agreed final order. Where a party identifies a good reason for a hearing, the court should ordinarily require an application notice, a joint note, relevant evidence, directions and adequate preparation. A declaration in the absence of a contradictor is exceptional, but was justified here by the practical need for clear legal guidance.

6. Ms Elmes’s children should have been named as interested parties while success in the claim could directly reduce their future pensions or expose them to recovery claims. They ceased to be interested parties once Essex decided not to recover the alleged overpayments. The court also stressed the continuing duty in public law proceedings to disclose matters capable of affecting the exercise of a discretionary remedy.

First-instance judicial review proceedings. The claim had been stayed pending the decision of the Supreme Court in Re Brewster; Brewster v Northern Ireland Local Government Officers’ Superannuation Committee [2017] UKSC 8.