Roy Anthony Thomas v Southwark Council

For a cohabiting partner’s pension under the Local Government Pension Scheme Regulations 2013, the claimant must show either financial dependence on the deceased member or mutual financial interdependence. It is unnecessary to establish that the deceased member was financially dependent on the claimant. The conditions must have been satisfied continuously for at least two years immediately before the member’s death. A decision-maker must apply that alternative test correctly and assess all relevant evidence coherently. Where a pension decision rests partly on an erroneous legal approach and partly on a rejected factual premise, the resulting maladministration may require reconsideration and a fresh decision, unless the outcome would necessarily have been the same.

Ms Claudette Coke was an active member of the Local Government Pension Scheme. After her death, Roy Anthony Thomas applied to Southwark Council for a cohabiting partner’s pension. The Council refused the application, principally on the grounds that financial dependence or interdependence had not been established. The Pensions Ombudsman rejected the Council’s conclusion that the parties had not lived together as a married couple, but upheld the refusal on the financial-dependence issue.

Permission to appeal was granted on the pension issue only. The central question was whether the Ombudsman’s conclusion rested on an error of law in relation to the interpretation and application of the financial-dependence condition.

1. Appeal allowed. The application for a cohabiting partner’s pension was remitted to Southwark Council for reconsideration and a fresh decision.

2. Under the definition of “cohabiting partner” in Schedule 1 to the Local Government Pension Scheme Regulations 2013, the financial condition presents alternatives. The applicant must show either that he was financially dependent on the deceased member or that the parties were financially interdependent. He need not show that the deceased member was financially dependent on him.

3. The conditions, including the financial condition, must have been satisfied continuously for at least two years immediately before the member’s death. It is insufficient that they were satisfied for an earlier two-year period but had ceased to be satisfied by the date of death.

4. The Council’s reasoning was legally defective. The material before the Ombudsman indicated that the Council had accepted that the appellant was dependent on Ms Coke, while also appearing to require proof that she was dependent on him. The Council also discounted evidence connected with the parties’ business, apparently because it considered that they had only a business relationship. That approach was difficult to reconcile with the Ombudsman’s finding that the parties had lived together as a married couple.

5. The Ombudsman’s conclusion that the Council had followed a proper process and acted in accordance with the Regulations could not stand. The decision rested on an incorrect interpretation of the Regulations and an incoherent assessment of the evidence. It was not obvious that a properly conducted process would have produced the same result, so remittal was appropriate.

6. On reconsideration, the Council should consider the significance of Ms Coke’s provision of accommodation, the rental income from the appellant’s flat, and the parties’ financial arrangements. The business evidence should be assessed carefully, without assuming that business-related transactions were irrelevant or that they established personal financial interdependence.

• Pensions Ombudsman: determination dated 23 February 2024 (referred to in the judgment also as dated 24 February 2024) concluded that the appellant had suffered no financial loss and that the refusal of the cohabiting partner’s pension was supported by the evidence, while awarding £500 for distress and inconvenience concerning the death grant notification.
• High Court, Chancery Appeals: permission to appeal was granted on the cohabiting partner’s pension issue. The appeal was allowed and the application was remitted to Southwark Council for reconsideration and a fresh decision.