The recent Court of Appeal decision in Langford v Secretary of State for Defence considered whether a rule in the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011, preventing a cohabitee from receiving survivors’ benefits, was discriminatory.
The rule provided for the surviving adult dependant of a deceased scheme member to be entitled to death benefits provided that, at the time of the member's death, the person and the member were cohabiting as partners in a substantial and exclusive relationship, the person was financially dependent on the member, and the person and the member were not prevented from marrying.
A claim for benefits under this rule had been disallowed because the surviving adult dependant was prevented marrying the scheme member as she was still married to a third party.
The rule discriminating between married and unmarried members would be allowed if it could be objectively justified.
Broadly, this would be the case if the rule pursued a legitimate aim and was a proportionate means of achieving that aim.
The aims put forward were (i) to achieve parity of treatment between married and unmarried partners of scheme members; (ii) to prevent double recovery by the partner in the event that the partner's spouse was also a member of the same or similar public service scheme; and (iii) to avoid an increase of cost in the scheme and administrative inconvenience.
The Court of Appeal found that while the first aim was legitimate, it was met by requiring the partner to be in a substantial and exclusive relationship of financial dependence, rather than by the partner not being prevented from marrying the member.
There was no evidence put forward of the likely numbers that might be involved in double recovery or to support the third aim.
If the second aim had been legitimate, the rule would not have been a proportionate means of achieving it, as the same result could have been achieved by requiring evidence that the person was not married to the member of another public service scheme.
On that basis, the discrimination against those prevented from marrying was not found to be justified or proportionate in this case.
The prompt for bringing the case to the Court of Appeal had been an earlier decision in Brewster v Northern Ireland Local Government Officers’ Superannuation Committee.
That case had found that there was no objective justification for a rule in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009, which had required a cohabiting partner to be nominated by a member in order to be eligible for survivor benefits, when married couples and civil partners did not have to make such a nomination.
Equivalent nomination requirements had been removed from the regulations governing the Local Government Pension Scheme in England and Wales in 2014.
In Brewster, the Department of the Environment for Northern Ireland had argued the objective of the procedural requirements relating to cohabitants was “to ensure that the existence of a cohabiting relationship, equivalent to marriage or civil partnership, was established in an objective manner and that the wishes of the scheme member had been identified through the execution of a valid nomination form during his lifetime.”