Brewster’s (Denise) Application
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Judgment Date | 09 November 2012 |
| Neutral Citation | [2012] NIQB 85 |
| Date | 09 November 2012 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2012 |
1
Neutral Citation No: [2012] NIQB 85
Ref:
TRE8643
Judgment: approved by the Court for handing down
Delivered:
9/11/2012
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Brewster’s (Denise) Application [2012] NIQB 85
IN THE MATTER OF AN APPLICATION BY DENISE BREWSTER
FOR JUDICIAL REVIEW
AND
IN THE MATTER OF A DECISION OF THE NORTHERN IRELAND LOCAL
GOVERNMENT OFFICERS’ SUPERANNUATION COMMITTEE
________
TREACY J
Introduction
[1] By the present application for judicial review, the applicant challenges the decision of
the respondent Northern Ireland Local Government Officers’ Superannuation Committee
(“NILGOSC”) made on 1 July 2011, by which it declined to pay a survivor’s pension to the
applicant following the death of her co-habiting partner.
[2] In reaching the decision NILGOSC applied Regs24 and 25 of the Local Government
Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland)
2009 (‘the 2009 Regulations’) for which the notice party Department of Environment (“DOE”)
is responsible.
[3] David Scoffield QC appeared for the applicant, Mr Sayers BL for the respondent, Mr
McGleenan QC for the Notice Party. The Attorney General for Northern Ireland (“AGNI”)
was placed on notice of the application by virtue of notices under Order 120 and Order 121 of
the Rules of the Supreme Court (NI) and made written submissions. I am indebted to all
counsel for their excellent written and oral submissions in this important and difficult case.
2
Issue for Determination
[4] The applicant was not married to the deceased but was his long-term cohabiting
partner. They were engaged to be married. Her central argument is that the impugned
decision is a breach of her rights under Art 14 ECHR read together with Art 1 of the First
Protocol ECHR and discriminates against her on the basis of her status as the unmarried
partner of the deceased. In consequence she is being deprived of a pension in the sum of
approximately £4,650 per year. The applicant’s challenge is that co-habiting partners are
treated less favourably than married partners by virtue of the requirement placed upon co-
habiting partners that a nomination be made.
[5] It is accepted that there is different treatment involved, that being unmarried is a status
within the meaning of Art 14, and that the facts in issue fall within the ambit of Art 1 of the
First Protocol. The focus of the challenge is therefore on the justification for the different
treatment. For the purpose of Art 14, a difference of treatment was discriminatory if it had no
objective or reasonable justification, that was, if it had not pursued a legitimate aim or if there
had not been a reasonable relationship of proportionality between the means employed and
the aim sought to be realised. [see Re Morrison’s Application [2010] NI 194].
Background
[6] The applicant and Mr McMullan had been in a long-term relationship for many years.
They had been co-habiting for 10 years and had purchased her present property together
some years ago also, having previously lived together in two other properties.
[7] In April 2009, co-habiting partners became eligible for survivor’s pensions under the
NILGOSC scheme for the first time but it seems that nomination forms were not available
until 21 May 2009. Seven months later, and shortly before Mr McMullan’s death, the
applicant and he became engaged.
[8] Mr McMullan died suddenly on 26 December 2009. At the time of his death he had
been employed by Translink for approximately 15 years. During that period he paid into an
occupational pension scheme administered by the proposed respondent.
[9] NILGOSC has paid out a death grant in respect of Mr McMullan’s death in the sum of
around £68,000 and half of this has been paid to the applicant. NILGOSC declined to pay the
applicant a survivor’s pension in the absence of a nomination form contending that it has no
discretion under the relevant regulations to do so. It was confirmed at the leave hearing that
the application proceeds on the basis that a nomination form was not filled in or was not
submitted.
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R Ms Nicola Elmes v Essex County Council
...the legal system Ms Elmes's litigation was held up for nearly 4 years. When Ms Elmes's claim was begun Treacy J at first instance ( [2012] NIQB 85) had already concluded that the Northern Irish nomination requirement was invalid under the 1998 Act because it infringed the Convention. Howev......
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Re Brewster
...Committee (the committee) and the Department of the Environment for Northern Ireland (the department) from the order of Mr Justice Treacy([2012] NIQB 85) granting the claimant judicial review of the committee's refusal to pay her a pension. Ms Helen Mountfield, QC, and Mr Chris Buttler (bot......