LGPS Survivor Benefits - Brewster Case

LGPS Survivor Benefits - Brewster Case

Background

The LGPS provides survivor pensions payable upon the death of a member.

Before 1 April 2008, we could only pay survivor pensions to surviving spouses, civil partners and eligible children. We were not able to pay these pensions to surviving cohabiting partners.

The government amended the Scheme's rules on 1 April 2008 so to provide survivor pensions to cohabiting partners. The change, however, only applied in respect of members who paid in to the scheme on or after 1 April 2008. To receive a pension, certain conditions must be met.

Firstly, the member must have nominated their partner. This was done by the member giving a declaration signed by both the member and the partner that the 'underlying conditions' had been satisfied for a continuous period of at least 2 years.

The 'underlying conditions' are as follows:

  • The member was able to marry, or form a civil partnership with the partner, and
  • The member and the partner were living together as if they were husband and wife or as if they were civil partners, and
  • Neither the member nor the partner were living with a third person as if they were husband and wife or as if they were civil partners, and
  • Either the partner was financially dependent on the member or the member and the partner were financially interdependent.

Secondly, upon the death of the member, providing the nomination was then still in effect, the partner would need to satisfy us that the above 'underlying conditions' were met for a continuous period of at least 2 years immediately prior to the member's death.

For deaths occurring on or after 1 April 2014, the government amended the rules so that members no longer needed to nominate their partner. Nonetheless, a surviving cohabiting partner still needs to satisfy us that the above 'underlying conditions' were met.

The Brewster case

Ms Brewster's cohabiting partner was a member of the Local Government Pension Scheme (Northern Ireland). Sadly, in 2009, her partner unexpectedly died. Unfortunately, though the previously mentioned 'underlying conditions' were met, the Scheme refused to pay Ms Brewster a survivor pension. This was because her partner had not nominated her.

Ms Brewster felt that this was unfair. She argued that as married couples and civil partners were not required to nominate each other as a condition of eligibility, it was unlawful discrimination to require cohabiting partners to do so. Ms Brewster took her case through the courts.

On 8 February 2017, the Supreme Court found in her favour. The court found that the nomination requirement was incompatible with the European Convention on Human Rights. This was on the basis that the requirement was discriminatory and could not be justified.

As noted, in 2014, the government removed the requirement for cohabiting partners to make a nomination as a condition of eligibility. However, the change did not apply to deaths that occurred before 1 April 2014. The judgement in the Brewster case means that the Scheme should never have had the nomination requirement. This conclusion is further supported by a similar case (Elmes v Essex County Council) in respect of the LGPS (England & Wales).  

What we are doing

We have, therefore, reviewed all cases of our members who both paid into the scheme on or after 1 April 2008 and died before 1 April 2014. We have looked for cases where the member appeared to have a cohabiting partner at the date of death regarding whom the member had not made a nomination.

We are in the process of writing to all the cases we have identified asking the partner whether they would like to apply to receive a cohabiting partner's pension.

Please note that the partner must still satisfy us that the following were met for a continuous period of 2 years immediately prior to the member's death:

  • The member was able to marry, or form a civil partnership with the partner, and
  • The member and the partner were living together as if they were husband and wife or as if they were civil partners, and
  • Neither the member nor the partner were living with a third person as if they were husband and wife or as if they were civil partners, and
  • Either the partner was financially dependent on the member or the member and the partner were financially interdependent.

If we are satisfied that the above conditions were met for the relevant 2-year period, we will put their survivor pension into payment with backdated effect to the day following the date of death.

More information

Please contact this office if you require any further information.

If you do not receive a letter from us before 28 June 2019 and you feel that you may be eligible for a cohabiting partner's pension, please contact us as soon as possible.

Disclaimer

This article is for general use and cannot cover every personal circumstance as its contents are based on our understanding of the legislation and events at the time. In the event of any dispute over your pension benefits, the appropriate legislation will prevail as this article does not confer any contractual or statutory rights and is provided for information purposes only.