What are the implications of the Denise Brewster case for cohabiting couples generally?

On 8 February 2017 the Supreme Court handed down its judgment in the case of Denise Brewster. She had brought an application for judicial review of the decision of the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC) that she was not eligible to receive her late cohabitee’s pension upon his death. The Supreme Court held that she was so entitled. Whilst this decision has been heralded as a significant development in the rights of cohabiting couples, upon a closer reading of the judgment, it is in fact fairly narrow in its scope.

Background: William Leonard McMullan (“Lenny”) and Denise Brewster lived together for 10 years before December 2009. On Christmas Eve that year they became engaged. Sadly, Lenny died two days later. His death was sudden and unexpected; he was only 43. He died in the home that the couple shared in Coleraine, County Londonderry. They had bought  the house together in 2005. he died intestate. They had no children.

At the time of his death he was employed by Translink, the company which provides Northern Ireland’s public transport services. He had worked for that company for about 15 years. Throughout his employment there he had paid into the Local Government Pension Scheme Northern Ireland, which was administered by NILGOSC. When he died the scheme was administered in accordance with the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 (SI 2009/32) (the 2009 regulations). The second respondent, the Department of the Environment for Northern Ireland (DENI) made and was responsible for the 2009 regulations.

The 2009 regulations provided, for the first time, that a cohabiting surviving partner would be eligible for payment of a survivor’s pension if they had lived together for two years before the date of the declaration under the terms of the pension and been in that position for two years before the date of death. The case centred on the requirement that in order to qualify for payment of the pension, a cohabiting surviving partner had to be nominated by the member. Here, the only reason why it was decided that Ms Brewster did not qualify for the pension was because the nomination was not made.

The issue for the Supreme Court to determine was whether this amounted to unlawful discrimination contrary to article 14 of the ECHR.

Judgment of the Court: the leading judgment was given by Lord Kerr (Lady Hale, Lords Wilson, Reed and Dyson concurring). The Supreme Court considered the Law Commission’s Report: “Cohabitation: The Financial Consequences of Relationship Breakdown (2006)(Consultation Paper No 179). In distinguishing the position between cohabitating relationships ended by the death of one partner and those ended by separation, his Lordship quoted para 6.13 of the Report:

“It is important … not to equate separation and death. .. there is a qualitative difference between a relationship cut short by death and a relationship terminated by separation. On separation, there has ordinarily been a failure of commitment by at least one of the parties. It is, therefore, legitimate when considering the eligibility of separating couples under our recommended scheme to ask whether the length of the relationship indicated that there was, at least at one time, sufficient commitment between the parties to justify bringing the relationship within the scheme. Where a relationship is terminated by death, however, the ending of the relationship does not of itself suggest that there was any lack of commitment on either side. This qualitative difference may well affect what should be regarded as reasonable financial provision on death and who should be eligible to make a claim under the 1975 [Inheritance (Provision for Family and Dependants)] Act.”

Lord Kerr stated that important general considerations underlie the observations. It will be more readily deducible that the requisite level of commitment existed where the relationship is ended by death. Also, notions of fairness have an obvious role to play when one is considering whether it is right to deny a financial benefit to a surviving unmarried partner when a married partner would have an automatic right to that benefit.

It should be noted that the 2013 Regulation in England and Wales and the 2014 Regulations in Scotland removed the nomination requirement in those jurisdictions.

Breach of Article 14: article 14 provides that the enjoyment of the rights and freedoms in ECHR “shall be secured without discrimination on any ground such as sex, race, colour … or other status” (emphasis added). The question was whether the appellant’s right to property had been “objectively justified”.

Decision: Lord Kerr found that the interference with the appellant’s right to property could not be objectively justified. This was the case even though the Court (1) had  regard to the wide margin allowed to the State when it comes to general measures of economic or social strategy; (2) took into account the fact that the status involved was not an “immutable characteristic” (unlike sex or race). Lord Kerr held that for a number of reasons including the fact that the nomination requirement was introduced to bring the law in Northern Ireland into line with that in England and Wales at the time and no independent evaluation of the need for this particular procedure was undertaken; (3) the “bright line” rule ie. the advantage of having a clear rule for administrative purposes did not apply – there was no evidence that the would be significant problems in administering the scheme if the nomination requirement was abandoned.

As to the test for proportionality there was no rational connection between the objective of removing the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member and the imposition of a nomination requirement.

The appeal was allowed.

Analysis: this decision is undoubtedly significant in that it acknowledges the shift in societal attitudes towards treating longstanding cohabitation and marriage commensurately. The Supreme Court is prepared to take these considerations into account where it can properly do so. Nevertheless, the case has limited relevance to the position where unmarried couples separate in contrast to the position where the relationship ends upon the death of one partner. Lord Kerr sets out in detail why in his view the two situations are different. Further, and most importantly, the case is limited to the application of secondary legislation in Northern Ireland and therefore does not have a direct impact on the rights of cohabiting couples more generally.