LexisLibrary and LexisPSL
Sign up for a free trial today and get full access for a weekTrial
This work provides commentary, checklists, procedural guides and precedents on the subject in a...
 The imposition of the additional hurdle in respect of cohabiting partners has had an effect in this case which appears to run contrary to the legitimate aim of the legislative scheme which was to facilitate entitlement to pensions without discrimination on grounds of status. In fact, in this case, the additional requirement, unique to qualifying cohabitees, has become an instrument of disentitlement.The appeal by NILGOSC and DENI to the Court of Appeal ( NICA 54) was allowed by majority. In his judgment, Higgins LJ held:
 … I therefore conclude that whilst the impugned regulations pursue a legitimate aim there was not, for the reasons given, a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. In this case the means defeated the aim.
 … There may be other means of notifying the Committee of the member’s wishes and the identification of the beneficiary but this is the method chosen by Parliament. As Lord Dyson observed in Swift when a line has been drawn like this some cases will fall on the wrong side. It does not mean the line or the scheme was unjustified or disproportionate.Ms Brewster’s appeal to the Supreme Court was unanimously allowed, declaring that the nomination requirement outlined in the 2009 Regulations should be disapplied and Ms Brewster be entitled to receive the survivor’s pension on foot of the scheme. Lord Kerr (with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agree) gave judgment.
' If nomination was not required of a married survivor of a scheme member and if the overall aim of the amended regulations was to place a surviving cohabitant who was in a stable, long term relationship with the deceased scheme member on an equal footing with a surviving spouse or civil partner, the need for a nomination procedure in the case of the cohabitant is difficult to find. If it was designed to test the truth of a claim that the relationship was stable and long-lasting, that would be one thing. But it was not.'
' No independent evaluation of the need for this particular procedure was undertaken'In the absence of any compelling argument for the specific requirement to nominate being made, the Court ruled the imposition of a nomination for cohabiting couples unjustifiably limited Ms Brewster’s Article 14 rights.
' I consider that there is no rational connection between the objective and the imposition of the nomination requirement…'This decision from the Supreme Court is a refreshing move forward on the law of cohabitation in the UK and the rights of cohabiting couple families in the continuing absence of definitive legislation. It was hoped the introduction of the Cohabitation Rights Bill would help provide necessary definition to the rights of the fastest growing family type in the UK. Whether or not the Bill will pass remains to be seen.