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It is, therefore, legitimate when considering the eligibility of separating couples under our recommended scheme to ask whether the length of the relationship indicated that there was, at least at one time, sufficient commitment between the parties to justify bringing the relationship within the scheme. Ratio |
Where a relationship is terminated by death, however, the ending of the relationship does not of itself suggest that there was any lack of commitment on either side. Ratio |
This qualitative difference may well affect what should be regarded as reasonable financial provision on death and who should be eligible to make a claim under the 1975 [Inheritance (Provision for Family and Dependants)] Act. Ratio |
It is, of course, the case that these comments were made in the context of whether cohabitants should be included in the categories of person entitled to make an inheritance claim under the 1975 legislation. Ratio |
But important general considerations underlie the observations. Ratio |
In the first place, it will be more readily deducible that the requisite level of commitment existed between the parties where the ending of the relationship is brought about by death rather than separation. Ratio |
Secondly, notions of fairness have an obvious role to play when one is considering whether it is right to deny financial benefit to a surviving unmarried partner when a married partner would have an automatic right to that benefit. Ratio |
These considerations bear on the justification for the preservation of the requirement of nomination in the impugned regulations. Ratio |
The Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007 (SI 2007/1166) (which, of course, applied in England and Wales) were laid before Parliament in April 2007, three months before the Law Commissions report was published. Ratio |
Notwithstanding the fact that no proposal for a nomination requirement had been made in the consultation paper, such a requirement featured in regulations 24 and 25. Ratio |
The Explanatory Note to the regulations did not give a reason for the nomination requirement. Ratio |
The Local Government Pension Scheme in England and Wales was revised in 2013 with effect from 1 April 2014 for claims arising after that date: the Local Government Pension Scheme Regulations 2013 (SI 2013/2356). Ratio |
The revisions included the removal of the opt-in or nomination requirement for unmarried couples. Ratio |
The same change was made to the Scottish scheme by the Local Government Pension Scheme (Scotland) Regulations 2014 (SSI 2014/164). Ratio |
The circumstances in which these changes took place and why they were not introduced in Northern Ireland are discussed in paras 24-28 below. Ratio |
The background to the Northern Ireland scheme FAC |
In an affidavit filed in these proceedings on behalf of DENI, Marie Cochrane, a deputy principal in the department, stated that the scheme in Northern Ireland had mirrored the scheme in Great Britain because it was considered to be generally desirable that local government employees should have equivalent pension benef... |
In August 2006, therefore, while the consultation in England and Wales was taking place, a separate consultation exercise was begun in Northern Ireland. FAC |
Although the Northern Ireland exercise was separate from that which had started in England and Wales some two months before, the consultation paper for the latter formed the centrepiece of the documentation sent to consultees in Northern Ireland. FAC |
Consultees were told that the Northern Irish scheme maintains parity with the scheme in Great Britain. FAC |
As earlier noted, the consultation paper for England and Wales did not suggest a nomination requirement in any of the four proposals that it contained. FAC |
Nor did the letter from Ms Cochrane which started the consultation process in Northern Ireland. FAC |
Despite the absence of any reference to a nomination requirement, NILGOSC, in its response to the consultation letter, raised the issue. FAC |
In its letter of 9 October 2006 to DENI, it pointed out that the Civil Service Pension scheme stipulated that there be a valid nomination of a cohabiting partner to receive a survivors pension. FAC |
NILGOSC immediately referred to a number of inequalities that would arise from such a requirement and to the possibility of legal challenge if these were not addressed. FAC |
These included:- 1. FAC |
The fact that married or civil partners did not have to be living together in order to benefit from the scheme, whereas cohabiting unmarried partners did; 2. FAC |
A married or civilly registered couple did not have to be in an exclusive, long term relationship established for a minimum of two years in order for a survivor pension to be paid; and 3. FAC |
A survivor pension would automatically be paid to a married or civilly registered partner; no nomination was required in their case. FAC |
The lack of a valid nomination form was likely to result in disputes where all the other criteria were met. FAC |
Since neither the consultation paper for the England and Wales exercise nor the letter from Ms Cochrane which set the Northern Ireland consultation in train contained any reference to a nomination requirement, it is unsurprising that no policy objectives that might be achieved by such a requirement were identified by D... |
But the letter from NILGOSC certainly brought the question of the need for such a requirement to centre stage. Ratio |
The appellant has pointed out that no evidence has been produced by DENI to show that the matter was considered at all, even after the letter from NILGOSC was received. Ratio |
Indeed, the only policy driver which emerges from a consideration of contemporary documents is the need to maintain parity with the rest of Great Britain. Ratio |
No independent assessment of the need for or the viability of a nomination requirement was undertaken. Ratio |
It appears that no attempt was made to address the possible difficulties that NILGOSCs letter had identified. Ratio |
The 2009 Regulations STA |
The 2009 Regulations were made under powers conferred by the Superannuation (Northern Ireland) Order 1972 (SI 1972/1073 (NI 10)). FAC |
Article 9 of that Order allowed DENI to make regulations providing for pensions, allowances or gratuities to be paid to or in respect of such persons, or classes of persons, as were to be prescribed. FAC |
In general, these were persons employed by local authorities and other public service employees. FAC |
On 6 June 2008 DENI invited consultees to comment on the draft regulations. FAC |
The draft regulations included the nomination requirement. FAC |
The only reference to this in the 6 June letter was that survivor benefits would be payable to widows, widowers, civil partners and nominated cohabiting partners, but the letter did not provide any explanation for the reason for including a condition of nomination nor did it specifically invite comment on it. FAC |
The 2009 Regulations were made on 25 February 2009 and the new Pension Scheme came into effect on 1 April 2009. FAC |
The relevant provisions are contained in regulations 24 and 25. STA |
The material parts of those regulations are as follows: 24(1) If a member dies leaving a surviving spouse, nominated cohabiting partner or civil partner, that person is entitled to a pension payable from the day following the date of death 25(1) Nominated cohabiting partner means a person nominated by a member in accor... |
(2) A member (A) may nominate another person (B) to receive benefits under the Scheme by giving the Committee a declaration signed by both A and B that the condition in paragraph (3) has been satisfied for a continuous period of at least two years which includes the day on which the declaration is signed. STA |
(3) The condition is that - (a) A is able to marry, or form a civil partnership with, B; (b) A and B are living together as if they were husband and wife or as if they were civil partners; (c) neither A nor B is living with a third person as if they were husband and wife or as if they were civil partners; and (d) B are... |
either B is financially dependent on A or A and (4) But a nomination has no effect if the condition in paragraph (3) has not been satisfied for a continuous period of at least two years which includes the day on which the declaration is signed. STA |
(5) A nomination ceases to have effect if - either A or B gives written notice of revocation (a) to the Committee; (b) A makes a subsequent nomination under this regulation; (c) either A or B marries, forms a civil partnership or lives with a third person as if they were husband and wife or as if they were civil partne... |
(6) B is As surviving nominated partner if - the nomination has effect at the date of As death; (a) and (b) B satisfies the Committee that the condition in paragraph (3) was satisfied for a continuous period of at least two years immediately prior to As death. STA |
It is clear that mere nomination will not satisfy the requirements of regulation 25. Ratio |
By para (4) of the regulation, nomination has no effect if the condition specified in para (3) has not in fact been satisfied for the requisite period. Ratio |
And by para 6(b) the nominated partner is required to satisfy the committee that the condition in para (3) had indeed been fulfilled. Ratio |
So the applicant must show that she has been a cohabitant for two years before the date of declaration and been in that position for two years before the date of death. Ratio |
The provisions demand of the surviving cohabitant that she or he prove to the satisfaction of the committee that the stipulations in para (3) have been met. Ratio |
They are freestanding of the nominating procedure. Ratio |
The question therefore arises, what is the function of requiring nomination? The appellant says that it adds nothing to the process of establishing that the qualifying conditions have been met. Ratio |
The 2013 Regulations in England and Wales and the 2014 Regulations in Scotland STA |
The Local Government Pension Scheme in England and Wales was revised with effect from 1 April 2014 for claims arising after that date. STA |
The revisions included the removal of the opt-in requirement for unmarried couples. STA |
Survivors pensions are now available to cohabiting partners. STA |
They are defined in Schedule 1 to the Local Government Pension Scheme Regulations 2013 as follows: cohabiting partner means a person whom the appropriate administering authority is satisfied fulfils the following conditions - (a) the person (P) has fulfilled the condition in paragraph (b) for a continuous period of at ... |
As stated in para 16, the same change was made to the Scottish scheme by the Local Government Pension Scheme (Scotland) Regulations 2014. STA |
The circumstances in which the nomination requirement in the England and Wales scheme was removed were explained in an affidavit of Chris Megainey, the deputy director (Workforce, Pay and Pensions) in the Department for Communities and Local Government (DCLG). Ratio |
He explained that the first consultation document which was issued before the draft 2013 regulations were prepared had included a proposal that the nomination requirement be maintained but consultees were invited to address the question of the need for its retention in light of the decision of Treacy J in the present c... |
Seventeen of the responses which were received (a significant majority) expressed a wish that DCLG should explore the possibility of introducing a less onerous system for determining a cohabiting partners entitlement to a survivors pension. Ratio |
In response to these replies, further consultations took place and it was decided that the nomination requirement should be removed. Ratio |
In a second affidavit, Mr Megainey said that, to the best of his knowledge and belief, the nomination requirement was removed from the legislation because it was considered to be unnecessary. Ratio |
Kimberley Linge, Policy Manager in the Scottish Public Pensions Agency (SPPA), explained the reasons for the change in the Scottish regulations. Ratio |
She said that after the Court of Appeal had given its decision in the present case, SPPA had sought advice from the Scottish Government Legal Department about the nomination issue. Ratio |
The advice received was to the effect that the nomination requirement was an overly burdensome one for cohabitants when compared with the requirements imposed on married partners and civil partners. Ratio |
Initially, that advice was not acted upon but following discussion at the Scottish Local Government Pension Scheme Advisory Group (a tripartite group comprising the unions, the Convention of Scottish Local Authorities and the Scottish Government) it was agreed to dispense with the nomination requirement. Ratio |
The application to re-open the appeal FAC |
When the appellants advisers became aware of the changes to the English 2013 and the Scottish 2014 regulations, they applied to the Court of Appeal for a re- opening of the appeal. FAC |
This was against the background that in the draft amended regulations which had been proposed in Northern Ireland in 2014 the nomination requirement was to be retained. FAC |
DENI opposed the application to re-open the appeal. FAC |
In an affidavit filed to support DENIs opposition to the reopening of the appeal, Ms Cochrane stated: I can confirm that the Department was not aware, at the date of hearing of this Appeal, of the intention of DCLG to amend the specific provision on the nomination requirement for a cohabiting partner survivor benefit. ... |
The Department, which is not copied into consultations by DCLG, first became aware of the existence of the 20 June 2013 consultation document on or about 24 June 2013 through either the DCLG website or through a specialist pensions bulletin published by Pendragon. FAC |
However, the Department did not become aware of the relevant part of the 20 June 2013 consultation until some point after 8 July 2013 Having become aware of the relevant part of the 20 June 2013 consultation document, I did not consider that this could have any bearing upon the Brewster case because the said case had a... |
Also a separate process for the development of proposals for the reformed Local Government Pension Scheme in Northern Ireland was underway. FAC |
I was not aware of the need to advise Departmental Solicitors Office of a prospective change in another jurisdiction and consequently did not do so. FAC |
The application to re-open the appeal was refused on 22 May 2014 and the Northern Irish scheme was revised on 27 June 2014. FAC |
The new scheme did not remove the nomination requirement for unmarried couples. FAC |
No evidence has been offered of any contemporaneous consideration of the need to preserve this requirement or of the desirability of amending the Northern Irish scheme so as to bring it into line with the changes in the rest of the United Kingdom, notwithstanding that before Treacy J and the Court of Appeal, DENI had r... |
The policy behind the nomination requirement Ratio |
Ms Cochrane dealt with the policy objectives underlying the 2009 Regulations and, in particular, the procedural requirements for cohabitants claiming survivor benefit in para 13 of her first affirmation, dated 21 February 2012, where she said: the decision to introduce in Northern Ireland the same procedural requiremen... |
The policy objectives of those requirements were those identified in the 2004 consultation paper issued by the Office of the Deputy Prime Minister. Ratio |
They were designed to ensure that the existence of a cohabiting relationship, equivalent to marriage or civil partnership was established in an objective manner and also that the wishes of the scheme member had been identified through the execution of a valid nomination form during his lifetime. Ratio |
One can understand why the procedural requirements designed to establish that a genuine and subsisting relationship existed had been included in the regulations. Ratio |
But this does not explain why a nomination was required. Ratio |
If it was shown (as, for the reasons given in para 23 above, it had to be) that there was indeed a cohabiting relationship which satisfied the tests as to its genuineness and existence at the time of the death, why was a nomination process needed? This added nothing to the evidential hurdle which a surviving unmarried ... |
If the requirements in regulation 25(3) (other than the making of a nomination) are satisfied, the only conceivable object of the nomination requirement was to find out what the scheme member wanted. Ratio |
But what had those wishes to do with the question of entitlement? It is not enough simply to state that the procedural requirements were designed to ensure that the wishes of the scheme member had been ascertained, in order to invest that aim with the necessary attribute of legitimacy. Ratio |
The confirmation of those wishes does not have some intrinsic, undeniable value. Ratio |
The purpose behind the avowed need to ascertain them must be stated. Ratio |
It has been said that its purpose was not to permit a scheme member to prevent, for vindictive reasons, his cohabiting partner from receiving a survivors benefit, although, on its face, it certainly had that potential. Ratio |
If that was not its purpose, what then was it? DENI adopted Higgins LJs characterisation of the purpose of the scheme to be to permit some cohabitants in certain defined circumstances to obtain the same pension provision as those who are married or in a civil partnership - para 17 of his judgment. Ratio |
DENI expressly disavowed the legitimate aim of the regulations which Treacy J had identified viz to facilitate entitlement without discrimination on grounds of status. Ratio |
What the judge had said about the aim of the regulations appears at para 54 of his judgment: The aim or underlying objective of this aspect of the pension scheme is to place unmarried, stable, long-term partners in a similar position to married couples and those in a civil partnership to facilitate entitlement to a pen... |
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