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In matter of an application by Denise Brewster for Judicial Review (Northern Ireland) - (08 Feb 2017)

Duty to secure rights calls for a more proactive role than requirement to respect rights


In fact of present case, Appellant lived with his partner for ten years before December 2009. On Christmas Eve, they became engaged. Sadly, Lenny McMullan died two days later. His death was sudden and unexpected.   At the time of his death, Mr McMullan was employed by Translink, He had worked for that company for approximately 15 years. Throughout that time Mr McMullan was a member of and paid into the Local Government Pension Scheme Northern Ireland. When Mr McMullan died, Northern Ireland Local Government Officers' Superannuation Committee (NILGOSC) administered the scheme pursuant to Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009. In April 2009, on coming into force of 2009 regulations, a cohabiting surviving partner became eligible for the first time, for payment of a survivor's pension. But, in order to qualify for payment of the pension, a cohabiting surviving partner had to be nominated by the member. Ms Brewster believes that Mr McMullan had completed a form in which he nominated her. Northern Ireland Local Government Officers' Superannuation Committee (NILGOSC) says, however, that it did not receive the form and has refused to pay her a survivor's pension.

Ms Brewster applied for judicial review. Court of Appeal allowed Respondents’ appeal, finding that, nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied to the Court of Appeal for her appeal to be re-opened. Her application was refused and she now appeals to the Supreme Court.

Denial of a survivor's pension falls within ambit of article 1 protocol 1 (peaceful enjoyment of possessions) (“A1P1”). Although, right to a pension might not be regarded, in conventional terms, as a possession, it is well settled that, A1P1 protects " possession s", which can be either "existing possession s" or assets, including claims, in respect of which applicant can argue that he or she has at least a "legitimate expectation" of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property.

Appellant, as a person who was in a cohabiting relationship other than a marriage or a civil partnership at the time of her partner's death, enjoyed a relevant status for the purposes of Article 14 of European Convention on Human Rights. Article 14 provides that the enjoyment of the rights and freedoms in ECHR "shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

A surviving unmarried partner falling within Regulation 25(6)(b) of the 2009 Regulations is in an analogous situation to a surviving married partner or civil partner. The single area of dispute between the parties, therefore, is whether the interference with the appellant's right to property has been "objectively justified".

 The starting point in the analysis of whether there is objective justification for interference with the appellant's right to property must be the duty of the state to "secure" her entitlement to equal treatment. Unlike, for instance, the duty under article 8 of ECHR, which enjoins the state to respect the citizen's right to a private life etc, Article 14 requires of the state that it should ensure that her rights under ECHR are in place unless there is objective justification for denying them to her.

The obligation to secure rights must require a greater level of vigilance on the part of the state authorities than is animated by a duty to have respect for a particular species of right. The duty to secure rights calls for a more proactive role than the requirement to respect rights.

  A suggestion that any matter which comes within the realm of social or economic policy should on that account alone be immune from review by the courts cannot be accepted. It must be shown that a real policy choice was at stake. While it is not essential that the policy options were clearly in play at the time the choice was made, obviously, when they were, the cause for reluctance by courts to intervene is enhanced.

 There is no rational connection between the objective and the imposition of the nomination requirement. Supreme Court allowed the appeal and declared that, requirement in the 2009 Regulations that the appellant and Mr McMullan should have made a nomination be dis-applied; and that appellant is entitled to receive a survivor's pension under the scheme.


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