Supreme Court to consider pensions plight of cohabitant

Family Law|September 29th 2015

A woman from County Londonderry in Northern Ireland has launched a fundraising campaign to help take her pensions dispute to the Supreme Court.

Denise Brewster lived in Coleraine, 55 miles northwest of Belfast, with her partner Lenny McMullan for ten years. The couple became engaged on Christmas Eve 2009 but tragically, Larry died suddenly little more than a day later.

He had worked for the public transport firm Translink for 15 years, making regular payments into the company’s occupational pensions scheme. Because he and Denise were only engaged and had not married at the time of his death she had no automatic entitlement to a survivor’s pension based on his contributions.

Normally cohabiting couples are required to sign a nomination form stating that their partner should receive their pension benefits in the event of their death, but the couple in this case reportedly did not do so (although there is some uncertainty over this point).

After she was refused the pension, Ms Brewster, who works as a lifeguard, initially took her case to the High Court, arguing that the requirement for a nomination form amounted to discrimination against cohabiting couples and was therefore a breach of their human rights – particularly Article 14 which covers discrimination. She won her case, only to have the judgement subsequently overturned at the Court of Appeal in Northern Ireland.

There, the now retired Lord Justice Higgins ruled in favour of the pension scheme administrators, declaring that completion of a nomination form was not an unreasonable requirement in the circumstances and did not amount to discrimination.

His colleague Lord Justice Coghlin agreed, adding:

“Human nature ensures that cohabitation relationships are endlessly variable in terms of continuity, commitment and content. The clear intention of the policy appears to have been to construct a definition that would be pragmatically effective in reducing public concerns based on perception of the cohabitee relationship as being inherently informal and transient.”

The hearing also highlighted the uncertainty regarding whether or not the couple had actually completed a nomination form. Although the case has progressed through each successive stage on the basis that a nomination was “not filled in or not submitted”, there was some doubt on this point.

Lord Justice Higgins explained:

“[Ms Brewster] averred in her first affidavit that she was certain that the deceased completed the nomination Form…. She could not remember signing it but remembered discussing it with the deceased and believed that he gave the Form to his employers. She also mentioned that the [pension] Committee and Translink had the wrong address for her partner. However she was also a member of the Scheme and in her second affidavit accepted that the Committee had the correct address for her and that she would have received the Members’ News. She averred that she “would have skimmed these booklets but would not have read them in detail or in their entirety” and would have put them in a drawer. No Nomination Form was received by the Society from the deceased nor had the respondent made a nomination in favour of the deceased.”

A lesson for us all there, perhaps: pay attention the paperwork!

But the story wasn’t over. Late last year, the Supreme Court agreed to hear Ms Brewster’s case and it is expected to go before the Justices in Spring next year. There can be little doubt this dispute has been propelled to the top because it is seen as important test case, one which could establish significant legal principles and precedents.

Personally, I agree with the distinction Lord Coghlin drew between marriage and cohabitation. They are not the same thing and I don’t think it can be assumed that Ms Brewster should automatically be entitled to survivor’s pension absent a signed nomination form. We will have wait and see whether Lord Neuberger and his esteemed colleagues reach the same conclusion.

Denise aims to raise £10,820 to fund the Supreme Court hearing, a sum which court fees, as well as her potential costs liability if the case fails. You can read her and contribute to her campaign on the legal crowdfunding site CrowdJustice here.

 

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(8)

  1. Andrew says:

    It may pay the court fees but I don’t see how it will cover her liability for costs if she loses. Does she plan to appear in person?

    Was there ever s case which better shows up the folly of abolishing security for costs? The administrators of the pension fund – whose money is that of other pensioners – are going to be out of pocket even if they win and it’s all wrong.

    • Marilyn Stowe says:

      Dear Andrew
      If you look at the website this is crowdfunding and I think they’re also trying to raise money to cover a potential costs liability.
      Regards
      Marilyn

  2. Andrew says:

    Yes; they are allowing £5,000.00 for that. Unless they have a costs-capping order (and don’t get me started on those) in place that seems modest – the Respondent’s court fee alone will eat up £320.00 of it!

    You will probably think me harsh, but I remain of the view that every non-assisted Appellant should be required to have insurance for any order which is made for the payment of the Respondent’s costs – the premium to be recoverable from the Respondent if the appeal succeeds. No insurance, no appeal. It is quite wrong that a successful Respondent should be left out of pocket.

  3. Luke says:

    I don’t think she has a case, they had plenty of time to get married and didn’t do it – I suspect with such a long engagement the reality is that he didn’t want to – if he didn’t sign the form then it’s unfortunate for her but it would be quite ridiculous if she won.

    • Cameron Paterson says:

      Technically speaking, they were only engaged for a day

      • Luke says:

        Yes, my mistake, I misread the article and I thought his passing was recent – I don’t think it really helps her case though.
        .
        My own view is that if he didn’t sign the form to include her then even if they were getting married the next day she still wouldn’t have a valid case. In such a situation I would like to think a company might be kind enough to decide to accept the position – but I don’t think they should be forced to by the courts.
        .
        In my view the courts tend to give far too little weight to signed contracts or the lack of them. Nobody really knows where they stand because as we have seen previously individual Judges can ride roughshod over contracts with barmy rulings.

      • Paula Cauley says:

        Your facts are wrong! It wasn’t a long engagement, they got engaged Christmas Eve and Lenny died Christmas night/Boxing day!! He also signed the form, the form got lost!

  4. Andrew says:

    Forms like this don’t just “get lost”.
    =
    They are acknowledged on receipt. Where is the acknowledgement?
    =
    There is an annual pension statement which shows who your nominee is, if you have one, and if you have not it say so. Mr McMullan got those forms and did not do anything about it. Why not?
    =
    It is very sad for this lady; but when you are sorting out rights after somebody dies there is nothing like signed paperwork for certainty. That is why (unless you are a soldier on active service, as we all learnt when we were young and hopeful) a will has to be in writing.
    =
    The pension administrators have set a perfectly simple and perfectly reasonable bright line: there was or there was not a signed form. To call that discriminatory (except perhaps against illiterates, and that’s not illegal!) and therefore unlawful is as Swift said spi9nning sunbeams out of cucumbers.

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