Looks at the development of survivors' pensions for opposite sex cohabiting couples, particularly in public service pension schemes and the recent decision of the Supreme Court on the application for judicial review by Denise BrewsterJump to full report >>
The pension tax legislation allows schemes to provide a survivor pension to a person who was not married or a civil partner of the scheme member but was financially dependent on them.
Until reforms introduced in the mid-2000s, public service schemes did not provide survivor pensions for unmarried partners. This was in contrast to private sector schemes, where the trustees often had discretion to provide such benefits. Changes in lifestyles led to pressure for schemes to be modernised and in the 1998 pensions Green Paper, the Labour Government said it would extend eligibility survivors’ pensions to unmarried partners if members were prepared to meet the additional costs. Subsequent reforms to all the main schemes included improvements to survivors’ benefits, such as the introduction of pension for unmarried partners and allowing pensions to be paid for life rather than removed on remarriage or cohabitation. These improvements were not made retrospective – scheme members either had to have service after the date of the reform or opt to be a member of the post-reform scheme.
When pensions for unmarried partners were introduced, most public service schemes required a nomination to have been made. Although the local government and firefighters schemes have now removed this requirement, it remains part of the rules of the schemes for civil servants, police, NHS staff and teachers.
In February 2017, on an application by Denise Brewster for judicial review relating to the local government scheme in Northern Ireland, the Supreme Court held that the nomination requirement should be disapplied and that she should be entitled to a survivor’s pension under the scheme. Her lawyers expected there to be a knock-on effect:
The rule which the Supreme Court has declared was unlawful is found in most of the UK’s public sector pension schemes of which there are around 12 million members. This includes the NHS, teachers and civil service schemes. It is also found in many defined benefit pension schemes in the private sector.
Although the Supreme Court has only declared the Northern Ireland local government scheme to be unlawful, the reasoning behind the Court’s decision means that the identical provisions found in many other public sector schemes are likely to be unenforceable. (Supreme Court gives woman right to late partners’ LGPS pension, 8 February 2017)
The Government says it is working with public service pension schemes to “understand what changes, if any, will need to be made”(PQ 65240 3 March 2017).
For a discussion of the legal position of cohabitants more widely, see Library Standard Note SN 3372 "Common law marriage" and cohabitation (February 2016).
The pension rights of civil partners and same sex married couples is discussed in Library Briefing Paper SN-03035 (February 2017).
Commons Briefing papers SN06348
Author: Djuna Thurley