Coleraine woman’s pension victory is overturned by senior appeal judges

Coleraine woman Denise Brewster had won a judicial review after being refused a pay-out from a scheme for public sector workers because she was not nominated.

However, last Tuesday, her victory was reversed by a majority verdict in the Court of Appeal, following challenges by the pension administering body and Department of the Environment.

Ms Brewster issued proceedings when the Northern Ireland Local Government Officers’ Superannuation Committee (NILGOSC) denied her a pension following the death of her partner, William Leonard (Lenny) McMullan.

The couple had lived together for ten years when Mr McMullan died suddenly in December 2009.

At the time of his death, Mr McMullan had worked for Translink for 15 years, paying into an occupational pension scheme administered by NILGOSC.

Earlier in 2009, co-habiting partners became eligible for survivor’s allowances for the first time if they have been nominated.

Although half of a £68,000 death grant was paid out to Ms Brewster, NILGOSC declined to award her a pension, claiming that it had no discretion under the relevant Local Government Pension Scheme Regulations.

In November last year, a High Court judge backed Ms Brewster’s case that the decision was irrational and discriminated against her on the basis of unmarried status.

However, two of the three appeal judges ruled that the outcome should be reversed.

According to Lord Justice Higgins, the onus was on the pension scheme member to ensure that his partner benefited.

He added: “I am of the opinion that this scheme and the requirement to complete a declaration on the appropriate form signed by both parties and notified to the Committee is not unjustified or disproportionate and gives rise to be discrimination.”

Backing his conclusion, Lord Justice Coghlin held the requirement to nominate is an integral element of the scheme, rather than the “additional hurdle” perceived in the High Court.

But Lord Justice Girvan said NILGOSC had not justified the different treatment between surviving spouses and civil partners and the more “precarious” surviving cohabitants.

He pointed out: “The rigidity of the condition means that, for example, an elderly cohabitant who may have lived with the member for many years, may well have wanted to get dependent on him, but could not stir her partner into action, has been entirely financially dependent on him, may have had a number of children and may have devoted her life to bringing up the family and looking after the member, would find herself without any pension entitlement after his death even if, in his later years, he has become in Yeats’ phrase ‘old and grey and nodding by the fire’, forgetful and unable to understand or call to mind his legal and financial affairs and obligations.”

Despite his determination, the appeal was allowed by a two-one verdict.

No order for costs was made after counsel for Ms Brewster told the judges any award against her would lead to “financial ruin”.