R Ms Nicola Elmes v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWHC 2055 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: C0/8256/2013 |
| Date | 31 July 2018 |
[2018] EWHC 2055 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Justice Walker
Case No: C0/8256/2013
and
Mr Christopher Buttler, instructed by Deighton Pierce Glynn, for the claimant
Mr Andrew Sharland QC, instructed by the Principal Solicitor, Essex County Council, for the defendant
The interested party was represented by the Government Legal Department, but did not appear at the hearing.
Hearing date: 18 January 2018
Written submissions were received on 4 February 2018 and 4 June 2018
Table of Contents
| A. Introduction | 1 |
| B. Background to this judgment | 6 |
| B1. This litigation and the regulatory position | 6 |
| B1.1 Ms Elmes's claim in a nutshell | 6 |
| B1.2 The parties to the present litigation | 9 |
| B1.3 Nomination 2007–14: the 2007 EW regulations & 2008 scheme | 10 |
| B2 Brewster & the stays affecting the present proceedings | 14 |
| B3. Ms Elmes's position, & the position of relevant children | 21 |
| B3.1 Ms Elmes's personal position | 21 |
| B3.2 The position of relevant children | 24 |
| B4. Events from February 2017 up to the grant of permission | 25 |
| B4.1 After Brewster: HMRC, Treasury, LGPC and Advisory Board | 25 |
| B4.2 The Treasury April 2017 advice | 26 |
| B4.3 The proceedings revive, but Essex seeks a further stay | 27 |
| B4.4 March 2017 JR grounds, acknowledgments of service, amended claim form | 31 |
| B4.5 Essex's July 2017 position, DPG's response, & Essex's reply | 39 |
| B4.6 Essex's August 2017 position and DPG's response | 48 |
| B4.7 DPG and the 2014 transitional regulations | 51 |
| B4.8 DCLG August 2017 letter, LGPC bulletin & HMRC 8 Sep email | 52 |
| B4.9 Essex's September 2017 position and DPG responses | 57 |
| B5 Grant of permission to proceed on 15 November 2017 | 59 |
| B6 From grant of permission up to December 2017 | 60 |
| B6.1 Advisory Board 16 Nov, exchanges, Essex's detailed grounds | 60 |
| B6.2 The Secretary of State's stance: no objection, no participation | 65 |
| B6.3 DPG's 12 December 2017 letter to ELS | 66 |
| B7 Pre-hearing preparations | 69 |
| B7.1 Ms Elmes's skeleton argument: general | 69 |
| B7.2 Ms Elmes: reasoned judgment or CPR PD 54A order? | 72 |
| B7.3 Ms Elmes's skeleton argument on the substantive issue | 78 |
| B7.4 Essex's skeleton argument | 80 |
| B7.5 The November 2017 Advisory Board paper | 88 |
| B7.6 The August 2017 adverse opinion, and what it said | 91 |
| B7.7 August 2017 adverse opinion: the parties' awareness | 94 |
| B8 The hearing on 18 January 2018 | 95 |
| B9 Events after the hearing | 107 |
| C. Relevant regulations in England and Wales | 110 |
| D. True legal meaning of the 2007 EW regulations | 117 |
| D1 True legal meaning: the substantive question | 117 |
| D2 What was common ground in Brewster | 120 |
| D3 Brewster: Supreme Court reasoning on disputed matters | 123 |
| D4 Approach of this court to Northern Irish decisions | 126 |
| D5 Essex's July 2017 position | 131 |
| D6 The August 2017 adverse opinion | 137 |
| D7 The substantive question: conclusion | 144 |
| E. Procedural questions | 145 |
| E1 Procedural questions: introduction | 145 |
| E2 The procedure for agreed final orders | 146 |
| E3 Objections to a reasoned judgment | 154 |
| E3.1 Objections to a reasoned judgment: introduction | 154 |
| E3.2 Lack of “precedent” value | 158 |
| E3.3 Theoretical issues | 164 |
| E3.4 The suggested need for a “contradictor” | 168 |
| E4 The potential role of interested parties and interveners | 180 |
| F. Keeping the court informed & other practical issues | 193 |
| G. Conclusion | 198 |
A. Introduction
This application for judicial review has required the court to determine the true legal meaning of provisions in a local government pension scheme (“LGPS”) once account is taken of the Human Rights Act 1998 (“the 1998 Act”). However it has wider ramifications. Among other things, it concerns:
(1) as regards the law in England and Wales concerning the grant of declarations and other discretionary remedies, procedural questions of general importance in public law cases as to:
(a) the need to consider whether, and if so how, proceedings can be framed in a way which seeks to ensure that potential practical issues are addressed, and that those who might be entitled, or who might reasonably wish, to take part can do so or apply to do so; and
(b) the need to ensure that the court is made aware of anything else which has the potential to affect the court's decision whether or not to grant the proposed discretionary remedy;
(2) as regards the substantive law in England and Wales governing local authority pension schemes, a question of importance for anyone who was a cohabiting partner, or a child, of a local government employee (“the scheme member”) in those instances where:
(a) the scheme member died, leaving a surviving cohabiting partner, during the period between 1 April 2008 and 31 March 2014 inclusive;
(b) the scheme member had not complied with a requirement (“the nomination requirement”) to nominate the cohabiting partner to receive benefits under the scheme; and
(c) if the nomination requirement had been met, the cohabiting partner would have been entitled to receive benefits in the form of a “survivor's pension” under the scheme.
The hearing of the application for judicial review took place on 18 January 2018. The claimant and the defendant were represented respectively by Mr Chris Buttler of counsel, instructed by Deighton Pierce Glynn (“DPG”), and Mr Andrew Sharland (then of counsel, now Queen's Counsel), instructed by Essex Legal Services (“ELS”). The interested party did not appear at the hearing but, through the Government Legal Department (“GLD”) and latterly Mr Julian Milford and Mr Christopher Knight of counsel, provided information at my request. I have been much assisted by oral submissions by Mr Buttler and Mr Sharland at the hearing, and by written material provided by the legal teams for all three parties before, during and after the hearing.
At the hearing I granted, among other things, a declaration (“the incompatibility declaration”) that the nomination requirement was incompatible with article 1 of the first protocol (“A1P1”) to, and article 14 of, the European Convention on Human Rights (“the Convention”, a term I shall use to include the first protocol) and must therefore be disapplied.
I also granted a declaration (“the entitlement declaration”) that Ms Elmes was entitled to be paid a survivor's pension under the LGPS from 13 November 2011 onwards, and an order (“the payment order”) requiring Essex by 2 February 2018 to pay to Ms Elmes the arrears of her survivor's pension, together with interest.
These three remedies were granted on the footing that Essex did not object to the two declarations and the payment order, but did not consent to them. In this judgment I give my reasons for granting those remedies.
B. Background to this judgment
B1. This litigation and the regulatory position
B1.1 Ms Elmes's claim in a nutshell
This litigation was begun by the claimant, Ms Nicola Elmes, on 5 June 2013. Her aim was to resolve a dispute with the defendant, Essex County Council (“Essex”). In its capacity as an administering authority for pensions purposes Essex had, in a reconsideration decision dated 4 April 2013, refused to grant Ms Elmes a survivor's pension. The sole reason for that refusal was that Ms Elmes's partner had not complied with the nomination requirement. Ms Elmes's response was that this did not matter.
Ms Elmes's contention was that the nomination requirement infringed the Convention. She submitted that in consequence, under the 1998 Act, the regulations governing pension provision must be read as if the nomination requirement did not apply.
In her original claim form Ms Elmes sought two remedies only:
(1) an order quashing the 4 April 2013 decision; and
(2) costs.
B1.2 The parties to the present litigation
The regulations applicable to Ms Elmes's claim were made by the Secretary of State for Communities and Local Government (“the Secretary of State”), who was named as an interested party. I refer below to the Department for Communities and Local Government as “DCLG”. With effect from 8 January this year the Secretary of State and DCLG became respectively the Secretary of State for Housing, Communities and Local Government and the Ministry of Housing, Communities and Local Government. However I shall continue to use the earlier abbreviations to include the new entities. I do so on the footing that references to actions of the Secretary of State or DCLG on and after 8 January 2018 are to be understood as involving the new entities rather than the old. As regards the present litigation I shall refer to Ms Elmes, Essex and the Secretary of State as “the parties to the present litigation”, or simply as “the parties”.
B1.3 Nomination 2007–14: the 2007 EW regulations & 2008 scheme
In 2007 local government pensions in England & Wales provided a survivor's pension to a person who was, at the time of the member's death, a spouse or civil partner of the deceased member. No provision was made for a person living as a cohabiting partner, but neither as a spouse nor as a civil partner, with the deceased member. For convenience I shall refer to such a person as “a cohabitor”.
In order to make provision for surviving cohabitors, previous regulations were revised in 2007 in England & Wales: see the Local Government Pension Scheme (Benefits, Membership Contributions) Regulations 2007, SI 2007/1166 (“the 2007 EW regulations”). As set out in section C below, where certain...
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