Local Government Pension Scheme in England and Wales - Access and Fairness

Background

When the Benefits Regulations came into effect on 1 April 2008, cohabiting partners were recognised in the LGPS for the first time. To simplify administration, the government introduced the category of ‘nominated cohabiting partner’ within the Benefits Regulations.  

To be considered a nominated cohabiting partner, several conditions had to be met by the cohabitees, which were set out in the regulations. In addition, the scheme member would need to submit a signed declaration to the administering authority to confirm the eligibility requirements had been satisfied and that the member wished their survivor benefits to be paid to their cohabitee. In the absence of this signed form no survivor benefit would be paid, even if the cohabiting partner had satisfied all other eligibility criteria. 

In Brewster (2017) UKSC 8, a survivor of a member of the LGPS NI challenged the scheme in respect of rules providing that cohabiting partners could only receive a survivor pension if their partner had duly nominated them. The Supreme Court ruled that this requirement was a form of unlawful discrimination and disapplied the rule. The ruling established that if all conditions other than the signed nomination form could be met, the survivor would be deemed eligible. 

The LGPS maintained a similar nomination requirement from 1 April 2008 to 31 March 2014, until it was removed in the 2014 Regulations. However, the requirement of a signed nomination form for benefits related to members who died between 1 April 2008 and 31 March 2014 was not removed. 

In Elmes (2018), the rules in the Benefits Regulations were challenged, on the requirement for members to have a signed nomination form in order for their cohabiting partner to be eligible for survivor benefits. The High Court granted a declaration that the requirement to nominate a cohabiting partner as a condition of eligibility was incompatible with the European Convention on Human Rights. The judgment disapplied the nomination requirement in the LGPS and applied the same remedy as in Brewster (2017).  

In 2021, the department issued a letter (Letter to Funds) to administering authorities in the LGPS, with a related statement being issued by the Local Government Pensions Committee (LGPC Bulletin 161), that provided non-statutory guidance that allowed administering authorities to rely on the Brewster judgement and the Human Rights Act 1998 to not require a surviving partner to have been nominated. Though the Benefits Regulations have not been updated, the government’s expectation is therefore that administering authorities have in practice disapplied the nomination requirement. 

Additionally, it has been identified that there is also a nomination requirement in the Local Government (Discretionary Payments) (Injury Allowances) Regulations 2011 (“the 2011 Regulations”). This requirement was originally required because the drafting of these Regulations was carried out in line with the then current LGPS Scheme, as defined in the Benefits Regulations, which required cohabiting partners to be nominated. As the nomination requirement in the Benefits Regulations is no longer suitable, the government is proposing to remove the nomination requirement in the context of an injury also. 

Proposal

The government now proposes to amend the Benefits Regulations to formally remove the nomination requirement for all deaths that occurred between 1 April 2008 and 31 March 2014. This will align the scheme’s rules with the declaration disapplying the nomination requirement that the High Court provided for in Elmes (2018). This will mean that for any death that occurred between those two dates, qualifying cohabitees will be entitled to a survivor’s pension, although as above the expectation is that these survivors will already be receiving their pension.  

To qualify, a cohabitee must fulfil all conditions already set out in regulations other than the signed nomination. This is to say, a cohabitee will qualify for a survivor pension without a signed nomination form under this remedy if: 

1. The relevant member had been active in the scheme on or after 1 April 2008; 

2. The relevant scheme member’s death occurred between 1 April 2008 and 31 March 2014; and 

3. The survivor had met the following conditions for a continuous period of at least 2 years on the date the relevant member died:  

1. The member and the survivor would be able to marry, or form a civil partnership; and 

2. The member and the survivor were living together as if they were spouses or as if they were civil partners; and 

3. Neither the member nor the survivor was living with a third person as if they were spouses or as if they were civil partners; and 

4. Either the survivor was financially dependent on the member, or the member and the survivor were financially interdependent. 

As the Benefits Regulations have been revoked (subject to some exceptions the government proposes to make these changes through an amendment to regulation 3 of the 2014 Regulations. This provides that, insofar as the Benefits Regulations continue to have effect for the purposes of those exceptions, they apply with modifications. 

The government proposes to apply these changes from the date the signed nomination form was required, and so the relevant change is backdated to apply from 1 April 2008. In making any changes to the LGPS’s rules, the government is mindful to manage costs. As stated in the judgement in the case of Harvey, R (On the Application Of) v London Borough of Haringey & Anor, 2018, pre-2008 schemes did not make provision for survivor pensions for cohabitees. This influenced the contribution levels set for employees and employers across the LGPS before 2008. If cohabitees were to be recognised, local government employers and employees would have to cover the costs. The government therefore does not propose to extend benefits to cohabitees of members who have not contributed to the LGPS on or after 1 April 2008. In effect, the government is not proposing to backdate earlier than 1 April 2008. 

Regarding the 2011 Regulations, the government is proposing to also remove the nomination requirement from these regulations, with no retrospective application. The decision to not backdate the change in this case is because payments to survivors under the 2011 Regulations are discretionary, as opposed to an entitlement, and the government does not intend to revisit cases where the decision to award payment has already been made.