In this article we explore the Supreme Court's ruling in the case of Brewster v Northern Ireland Local Government Officers’ Superannuation Committee.
The Supreme Court's ruling in the case of Brewster v Northern Ireland Local Government Officers’ Superannuation Committee held that the rules of the Local Government Pension Scheme Northern Ireland breached the European Convention on Human Rights and Fundamental Freedoms by making the payment of a survivor's pension for an unmarried partner conditional on the member and his partner having completed a written declaration where no such declaration was required in the case of a married member.
The case was brought by Ms Brewster. Her partner had died suddenly at the age of 43. The couple were not married, but had lived together as a couple for the previous 10 years. Had the couple been married, Ms Brewster would have been entitled to a survivor's pension. The scheme rules made provision for pensions for unmarried cohabiting partners where a couple had been cohabiting as if married for at least two years and the survivor was dependent or financially interdependent on the member. However, in addition to these requirements, the survivor's pension was only payable if the member had nominated his partner by providing a declaration, signed by both himself and his partner, that the relevant requirements were met. No such nomination requirement applied to married couples. The scheme had no record of a declaration from Ms Brewster's partner, so refused to pay a survivor's pension.
Ms Brewster alleged that imposing a declaration requirement only in relation to unmarried couples breached the ECHR. The ECHR provides that a person is entitled to the "peaceful enjoyment of his possessions". It is established law in this context that "possessions" is broad enough to cover pension rights. The ECHR also provides that enjoyment of rights under the ECHR “shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” [emphasis added].
It was common ground between the parties that ECHR rights were engaged and that the requirement for a declaration was interference with Ms Brewster’s right to property for ECHR purposes. The sole issue between the parties was whether the requirement for a declaration was "objectively justified".
The Supreme Court held that the requirement for a declaration was not objectively justified. It was not clear that there had been a considered reason for adopting the declaration requirement when rights for cohabiting partners were introduced, beyond wanting to be consistent with the Local Government Pension Scheme in England, which had since dropped the nomination requirement. Nor was there any evidence that dropping the nomination requirement would result in significant difficulties in administering the scheme. The Supreme Court ordered that the requirement in the scheme rules for a declaration should be disapplied and that Ms Brewster should be entitled to receive a survivor’s pension under the scheme.
A key factor in the Brewster case was that the scheme already provided survivors' pensions for unmarried couples, so the issue was not a failure to make provision for unmarried partners at all, but rather the additional requirement for a declaration which applied only in the case of unmarried couples.
The question of which organisations are directly obliged to comply with human rights law is a complex one. Broadly, "public authorities" are obliged to comply with human rights law, but the boundaries as to what constitutes a "public authority" can be very unclear, with some types of entity subject to human rights law in relation to only some of their functions depending on whether the function is "public" or not.
Even where a scheme is not subject to the direct application of human rights law, trustees should consider carefully whether it is desirable to have a rule that makes payment of an unmarried survivor's pension dependent on the member having completed a declaration. If such a requirement has no objective justification, it seems likely that the Pensions Ombudsman will be sympathetic to a surviving partner who has been deprived of a pension solely for want of a signed declaration. Where the scheme is not subject to human rights law, the Ombudsman may well look sympathetically at complaints alleging that trustees should have made greater efforts to draw the requirement to members' attention.