High Court judgement removes requirement for co-habiting nomination form

A recent High Court judgement has removed the requirement for members of the Local Government Pension Scheme (LGPS) to nominate their cohabiting partner to receive a survivor’s pension in the event of their death.

The case of Nichola Elmes versus Essex County Council was heard before the High Court on Tuesday 18 January 2018 and declared that:

“The requirement to nominate a person under regulations 24 and 25 of the LGPS (Benefits, Membership and Contributions) Regulations 2007 is incompatible with Article 1 of the first Protocol to, and Art 14 of, the European Convention on Human Rights and must therefore be disapplied”.

The outcome of this case effectively removes the requirement for a co-habiting nomination form from regulations and enables a LGPS administering authority to pay a partner’s pension, to the partner (who meets the definition of co-habiting partner set out in schedule 1 of the LGPS Regulations 2013) of a deceased member who died without completing a nomination form, and who left active membership on or after 1 April 2008 and prior to 1 April 2014.

Following this judgement the Avon Pension Fund can now pay a survivor’s pension to the eligible partner of a former member of the LGPS, who died before 1 April 2014, but didn’t fill in a nomination form before their death.

The regulations for the new scheme from 2014 removed this condition so any deaths since 1 April 2014 will not have been affected.

The Avon Pension Fund has written to those who were now potentially eligible for payment of a survivor’s pension.

However, if you were a co-habiting partner of a member who left the LGPS between 1 April 2008 and 1 April 2014, who died before 1 April 2014 without completing a nomination form, you may be eligible for payment of a survivor’s pension. Please contact the Fund at quality_assurance@bathnes.gov.uk and we will investigate.

The conditions that need to be met for an eligible co-habiting partner’s survivor’s pension to be paid are outlined below:

A member’s co-habiting partner can be, of either opposite or same sex, with whom they have not entered into marriage or formed a civil partnership. On the member’s death, their partner will be entitled to a co-habiting partner’s pension provided that for a continuous period of at least two years immediately prior to the member’s death:

  • both the member and their co-habiting partner are, and have been, able to marry each other or form a civil partnership with each other, and
  • the member and their co-habiting partner have been living together as if they were husband and wife, or civil partners, and
  • neither the member or their co-habiting partner have been living with someone else as if you/they were husband and wife or civil partners, and
  • either the member’s co-habiting partner is financially dependent on the member or they are financially interdependent on each other.

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