Occupational pensions: survivors benefits for cohabitants

The pension tax legislation allows schemes to provide a survivor pension to a person who was not married or a civil partner of the scheme member but was financially dependent on them.

Until the mid-2000s, public service schemes did not provide survivor pensions for unmarried partners. In contrast, in private sector schemes the trustees often had discretion to provide such benefits. Changes in lifestyles led to pressure to modernise, and in1998 the Labour Government said it would extend eligibility survivors’ pensions to unmarried partners, if members were prepared to meet the additional costs. Subsequent reforms included pensions for unmarried partners. These improvements were not made retrospective – scheme members either had to have service after the date of the reform or opt to be a member of the post-reform scheme.

The fact that the scheme member needs service after a particular date, was subject an unsuccessful legal challenge in relation to the Local Government Pension Scheme (LGPS). The claimant, Catherine Harvey, was the unmarried partner of a deceased member of the LGPS who had left service before 1 April 2008, the date from which he needed to have been in employment for her to be eligible. Ms Harvey contended that the refusal to pay her a pension amounted to unlawful discrimination and a breach of her human rights. However,  the High Court found in favour of the Government. It considered that the central and core justification was that “spouses in the 1997 Scheme and cohabitees of 2008 Scheme members are entitled to a pension because it was costed into the relevant Schemes and paid for. Where a member left before April 2008 the member did not pay for a cohabitee to receive a benefit, nor was it otherwise costed into the 1997 Scheme” (LGPC Update, December 2018).

When pensions for unmarried partners were introduced, most public service schemes required a nomination to have been made. In February 2017, on an application by Denise Brewster for judicial review relating to the local government scheme in Northern Ireland, the Supreme Court held that the nomination requirement should be disapplied and that she should be entitled to a survivor’s pension under the scheme. HM Treasury subsequently wrote to public pension schemes saying that “cases previously refused solely because of a lack of nomination form should be reconsidered and schemes should pay survivor benefits from the date of the member’s death in eligible cases, regardless of when a claim is made”(PQ 105675, 16 October 2017). Where schemes required a nomination, that has now been removed by statutory instrument.

In July 2019, in the case of Langford v Secretary of State for Defence, the Court of Appeal held that a rule in the Armed Forces Compensation Scheme Order that for a cohabiting partner to be eligible for survivors’ benefits, there must have been nothing to prevent them marrying, amounted to unlawful discrimination which was not justified or proportionate in that case. The Department was “considering the merits of an appeal to the Supreme Court, and the read over of the judgment” (AFPS Annual Report 2018-19, HC 2403, July 2019, para 4.10).

However, both these judgments relate to restrictions in the rules of those schemes that do provide survivor’s benefits to unmarried partners. In January 2020, the Government said it did not think the Brewster judgment had any bearing on “cases where pension schemes do not provide pensions to unmarried partners” (HC Deb 28 January 2020 c239WH).

In 2019, in response to its 2014 review of survivors’ benefits, the Government said it supported “equal treatment of survivors of all legal relationships.” It would make changes to bring public service survivors’ benefits for same-sex civil partnerships and same-sex marriages into line with those for widows of opposite-sex marriages but would not make any further retrospective changes (HCWS 4 July 2019 c73WS).

For a discussion of the legal position of cohabitants more generally, see Library Briefing Paper “Common law marriage” and cohabitation (CBP 3372 June 2018). For the pension rights of civil partners and same-sex married couples, see CBP-03035 (Aug 2019).