Brewster (Denise) v Northern Ireland Local Government Officers’ Superannuation Committee and Department of The Environment For Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Higgins LJ |
| Judgment Date | 01 October 2013 |
| Neutral Citation | [2013] NICA 54 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 01 October 2013 |
| Year | 2013 |
1
Neutral Citation No. [2013] NICA 54 Ref: HIG8977
Judgment: approved by the Court for handing down Delivered:
01/10/2013
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_______
BETWEEN:
DENISE BREWSTER
Applicant/Respondent;
-and-
NORTHERN IRELAND LOCAL GOVERNMENT OFFICERS’
SUPERANNUATION COMMITTEE
Respondent/Appellant;
-and-
DEPARTMENT OF THE ENVIRONMENT FOR NORTHERN IRELAND
Notice Party/Appellant.
_______
Before: Higgins LJ, Girvan LJ and Coghlin LJ
______
Higgins LJ
[1] This is an appeal by the Northern Ireland Local Government Officers’
Superannuation Committee (“the Committee”) and the Department of the
Environment for Northern Ireland (“the Department”) from the decision of Treacy J
whereby he allowed the respondent’s application for judicial review of a decision by
the Superannuation Committee not to pay a survivor’s pension to the respondent
following the death of her cohabiting partner. Mr Hanna QC and Mr Sayers
appeared on behalf of the Committee; Mr McGleenan QC and Mr Lunny appeared
on behalf of the Department and Mr Scoffield QC appeared on behalf of the
respondent. Notice that the application for judicial review gave rise to a Devolution
Issue was served under the Northern Ireland Act 1998. The Attorney General for
Northern Ireland entered an appearance and appeared in the proceedings and on the
appeal with Miss Cheshire.
2
[2] The respondent’s partner was employed by Translink and had been for fifteen
years. He and the respondent had been in a relationship for approximately ten years
and lived together in a property purchased by them. They were engaged to be
married. He died suddenly on 26 December 2009. During his employment with
Translink he paid into an occupational Local Government Pension Scheme
administered by the Committee. The respondent was also in public employment
with a local Council and paid into a similar scheme which was administered by the
Committee. Following the partner’s death the Committee paid out a death grant in
the sum of £68,000, fifty per cent of which was paid to the respondent. On 1 July
2011 the Committee decided not to pay the respondent a survivor’s pension as the
deceased had failed to nominate the respondent as the person to receive benefits
under the Local Government Scheme. The application for judicial review proceeded
on the agreed basis that a nomination form was not filled in or was not submitted.
Consequently the respondent was deprived of a pension of approximately £4650 per
year.
[3] The respondent issued proceedings for judicial review seeking a declaration
that the decision of the Committee was unlawful and ultra vires and should be
quashed and that the Committee should be compelled to pay the survivor’s pension.
The grounds advanced were that the decision was in breach of the respondent’s
rights under Article 14 of the European Convention on Human Rights (ECHR) taken
in conjunction with Article 1 of the First Protocol of the Convention, that the decision
discriminated against the respondent on the basis of her status as the unmarried
partner of the deceased and that the Regulations requiring nomination and the
absence of a discretion in the Committee were unlawful.
[4] Article 9 of and Schedule 3 to the Superannuation (NI) Order 1972 empower
the Department by regulations to make provision with respect to pensions which
may be paid to such persons and subject to the fulfilment of such requirements and
conditions, as may be prescribed by the regulations. Following consultation with the
Local Government Association, the Committee and other interested parties, the
Local Government Pension Scheme (Benefits, Membership and Contributions)
Regulations (NI) 2009 (“the 2009 Regulations”) were made creating a new Local
Government Pension Scheme which came into operation on 1 April 2009 replacing
the 2002 Scheme. Regulation 24 provides for benefits to be paid to survivors of active
members.
“(1) If a member dies leaving a surviving spouse,
nominated cohabiting partner or civil partner, that
person is entitled to a pension payable from the day
following the date of death.
(2) The pension is calculated by multiplying his
total membership, augmented as if regulation 20(2)
(early leavers: ill-health) applied, by his final pay and
divided by 160.
3
(3) If there is more than one surviving spouse,
they become jointly entitled in equal shares under
paragraph (1).”
The ‘nominated cohabiting partner’ is defined in Regulation 25:
“(1) ‘Nominated cohabiting partner’ means a
person nominated by a member in accordance with
the terms of this regulation.
(2) A member (A) may nominate another person
(B) to receive benefits under the Scheme by giving the
Committee a declaration signed by both A and B that
the condition in paragraph (3) has been satisfied for a
continuous period of at least 2 years which includes
the day on which the declaration is signed.
(3) The condition is that —
(a) A is able to marry, or form a civil
partnership with, B;
(b) A and B are living together as if they were
husband and wife or as if they were civil
partners;
(c) neither A nor B is living with a third
person as if they were husband and wife
or as if they were civil partners; and
(d) either B is financially dependent on A or
A and B are financially interdependent.
(4) But a nomination has no effect if the condition
in paragraph (3) has not been satisfied for a
continuous period of at least 2 years which includes
the day on which the declaration is signed.
[I interpose that it is not disputed that the substantive
condition in (3) was satisfied in this case.]
(5) A nomination ceases to have effect if —
(a) either A or B gives written notice of
revocation to the Committee;
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6 cases
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McLaughlin's (Siobhan) Application
...This Court of Appeal considered the issue of cohabitees in Brewster v Northern Ireland Local Government Officers Superannuation Committee [2013] NICA 54. The Superannuation Committee refused to pay a survivor’s pension following the death of a cohabiting partner. The scheme provided for pay......
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R Ms Nicola Elmes v Essex County Council
...assumed that Treacy J's judgment would be the last word. Shortly after Ms Elmes's claim was begun the Northern Ireland Court of Appeal ( [2013] NICA 54) by a majority held that there was no infringement, and accordingly reversed Treacy J's decision. 19 The decision of the Northern Ireland ......
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Jacqueline Smith (Suing in her own Right and as the Surviving Partner of John Bulloch, Deceased) v Lancashire Teaching Hospitals NHS Foundation Trust and Others
...G [2008] UKHL 38, [2009] 1 AC 173 especially at [132]–[133], Sahin v Germany (2003) 36 EHRR 765, PM v United Kingdom (2006) 42 EHRR 45 and Re Brewster [2017] UKSC 8, [2017] 1 WLR 89 It was clearly so held in Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39, [2009] ICR 762, i......
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HM v Secretary of State for Work and Pensions (BB); MK v Secretary of State for Work and Pensions (BB)
...been completed before entitlement could be established and in that case no such form had been. The Northern Ireland Court of Appeal held ([2013] NICA 54) that that the rule was justified, but the Supreme Court ([2017] UKSC 8) subsequently disagreed. The reliance which Treacy J placed on the......
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