William Leonard “Lenny” McMullan and Denise Brewster had lived together in Co Londonderry, Northern Ireland, for 10 years. In common with many this day and age, they had bought a house together, but were unmarried. However, they became engaged on Christmas Eve 2009. Tragically, Mr McMullan died two days later. He was survived by Ms Brewster, and declared intestate.
Prior to his death, Mr McMullan had been working for Translink, the Northern Ireland bus and train service, and had worked there for nearly 15 years. During that time he had been paying into the local government pension scheme under Translink. Local government administered the scheme, in line with regulations – including the one most scrutinised in the proceedings, the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) (2009) (SI 2009/32) (the 2009 Regulations). From when the Regulations came into force in April 2009, a cohabiting unmarried surviving partner became eligible – for the first time – to receive payments of a survivor’s pension.
However, in order to qualify as a recipient of a survivor’s pension, the unmarried partner had to be nominated as the recipient by filling out a form. It is understood that no such form was found by the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC: the local government body responsible for administering the public service pension scheme) in Mr McMullan’s case. Ms Brewster remained convinced that such a form had been completed in her favour. The subsequent legal proceedings adopted the stance that such a form had not been completed.
Ms Brewster sought a Judicial Review of NILGOSC’s decision not to award her a survivor’s pension. She cited that (4) “the absolute requirement of nomination imposed on unmarried partners as a condition of eligibility for a survivor’s pension under the 2009 regulations constitutes unlawful discrimination contrary to Article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), when read in conjunction with Article 1 … ECHR.”
At first instance, Treacy J found in favour of Ms Brewster in 2012. However, appeal followed appeal – and the case found its way from Londonderry to London. It was heard by the Supreme Court, where Lord Kerr (the Northern Irish Judge on the Bench, and former Lord Chief Justice of Northern Ireland) delivered a short verdict, with the other four Judges in agreement.
In his 26 page verdict, Lord Kerr dwells a great deal on the case history, and the history and reasoning behind the 2009 Regulations. However, armed with that, and details of comparable Scottish and English Regulations, he returns to Ms Brewster, as he tries to explain the need for the nomination form:
32. It has been said that [the form’s] purpose was not to permit a scheme member to prevent, for vindictive reasons, his cohabiting partner from receiving a survivor’s benefit, although, on its face, it certainly had that potential. If that was not its purpose, what then was it? [The Department of the Environment for Northern Ireland] DENI adopted Higgins LJ’s characterisation of the purpose of the scheme to be “to permit some cohabitants in certain defined circumstances to obtain the same pension provision as those who are married or in a civil partnership” – para 17 of his judgment. DENI expressly disavowed the legitimate aim of the regulations which Treacy J had identified viz to facilitate entitlement without discrimination on grounds of status …. at Para 54 of his judgment:
“The aim or underlying objective of this aspect of the pension scheme is to place unmarried, stable, long-term partners in a similar position to married couples and those in a civil partnership to facilitate entitlement to a pension without discrimination on the grounds of status.”
33. DENI’s repudiation of the judge’s description of the aim of the regulations (in so far as they relate to the treatment of surviving unmarried partners of scheme members) is, to say the least, surprising. It is especially so in light of DENI’s proper – but inevitable – acceptance that the provision of a survivor benefit under the scheme engages A1P1 of ECHR and that the appellant’s status, as a person who was in a cohabiting relationship other than a marriage or a civil partnership at the time of her partner’s death, is a relevant status for the purposes of article 14 ECHR.
Having expressed his legal view seemingly in support of such rights for unmarried couples, Lord Kerr found no practical reason for the nomination form. Moving rapidly through many cases from page 18 onwards, with his well known Irish wit and firmness, Lord Kerr proceeds to dismantle the case advanced by NILGOSC and DENI. In his arguments, Lord Kerr returns repeatedly to the same principle, namely that it (34) “surely must be the case that the regulations were geared to eliminate unwarranted differences of treatment between married or civil partner survivors on the one hand and, on the other hand, those unmarried long term partners who were in a stable relationship with the [pension] scheme member before death.” He further questions the policy behind the nomination form, before turning to proportionality:
(67) … I consider that the objective of the particular provisions in the 2009 Regulations which are involved here must have been to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member. To suggest that, in furtherance of that objective, a requirement that the surviving cohabitant must be nominated by the scheme member justified the limitation of the appellant’s article 14 right is, at least, highly questionable. Be that as it may, I consider that there is no rational connection between the objective and the imposition of the nomination requirement.
Inevitably, Ms Brewster’s appeal was allowed, and she was awarded a survivor’s pension. A point to note here is that Ms Brewster is 42: the litigation has been concerned throughout with future pension rights for her. Interestingly, liberal Lady Hale, well known for attempting to champion the rights of unmarried couples when in the Family Division, did not give the leading verdict. However, she was on the panel that heard the case, and doubtless gave her full approval to the decision, following her views expressed in the comparable cases of Stack v Dowden  UKHL17 and Jones v Kernott  UKSC53. It was left to the fiesty Irish former Lord Chief Justice to make further legal history in advancing the rights of unmarried couples.
Despite being a case ostentatiously centred on Human Rights and discrimination – the verdict grants further recognition and rights to unmarried couples, and will be a significant leading case in that regard for years to come.
Although many local government pension schemes have since been overhauled in this regard, the verdict could still have some practical impact in this regard. Once a long term relationship has been satisfactorily legally established (in most cases, with the couple having to prove a stable relationship for longer than two years and were financially interdependent by having a joint bank account or similar), unmarried cohabitating partners will now automatically be enrolled into local government pension schemes.
It is less about the pension schemes – but more about the rights of unmarried couples. For many years, an increasing trend socially has been the rise of unmarried couples in long term, stable relationships. The late, legendary journalist A A Gill is a good example, as he was in a relationship with editor Nicola Formby (aka The Blonde in his articles) from 1995 until his death in 2016. Such households and even families are increasingly commonplace in British society, with such a trend only continuing to rise. However, such couples still have virtually no legal rights or recognition. Unlike several other jurisdictions (such as several provinces in Canada), UK law remains resolutely anchored in the past here. Under UK law, such couples are barely recognised, let alone afforded the same rights and protections as (either straight or gay) married couples.
It is about time, in 2017, that unmarried couples begin to be legally recognised. Times have changed: two people no longer need to exchange vows and rings to affirm their commitment to each other, and to start a family or household. It is a small gesture, but automatic acceptance for survivor’s pension rights is the first step towards such a legal change.
It is still uncertain whether the verdict will apply retroactively: that issue is for other, ongoing, litigation. What is certain is that An Application by Denise Brewster for Judicial Review (Northern Ireland)  UKSC 8 will secure greater rights for unmarried couples in the future.