Hogan Lovells

Key Dates

Judgment given on 31 July 2018.


Summary

The High Court has given a declaration that a requirement in the regulations governing the Local Government Pension Scheme (LGPS) that a survivor's pension could only be paid to a cohabiting unmarried partner where the deceased member had completed a nomination form nominating the partner, was incompatible with the European Convention on Human Rights (ECHR) and should be disapplied

Details

Ms Elmes' partner of 21 years died unexpectedly in 2011.  He had been a member of the LGPS but Ms Elmes was refused a survivor's pension as he had not completed a form nominating her for benefit.  The case was stayed pending a decision of the Supreme Court in Brewster v Northern Ireland Local Government Officers' Superannuation Committee, which also concerned the eligibility of an unmarried partner to a survivor's benefit where the deceased had not completed a nomination form.

In February 2017, the Supreme Court held in Brewster that the requirement for nomination was in breach of article 14 and Protocol 1 article 1 of the ECHR and declared that the requirement should be disapplied.

In Ms Elmes' case, the High Court followed Brewster and granted the application.  The Human Rights Act 1998 not only imposed an obligation to "read down where possible" but also disapplied provisions in subordinate legislation where these could not be read in a manner compatible with the ECHR.  The local authority's concern that payment of a survivor's pension to Ms Elmes might be unauthorised for tax purposes, and so subject to HMRC penalties, was dismissed. The decision in Brewster was binding, meaning that the payments of pension were authorised and HMRC could not treat them otherwise.



Date Accessed: 03/12/2021