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Supreme Court pensions victory could spark challenges to tax laws perceived to be discriminatory

Posted on: 8th February 2017

A woman who lost her long-term partner has won a Supreme Court battle over his pension that is set to improve the pension rights of unmarried couples in the public sector and could have implications for other areas of perceived discrimination against cohabiting couples.

Denise Brewster, a lifeguard from Northern Ireland, was denied payments from her late partner’s occupational pension and argued that she was the victim of discrimination.

Ms Brewster and her partner had lived together for 10 years and owned their own home. He died suddenly at Christmas in 2009, aged 43. If they had been married she would have automatically shared the pension that he had built up.

Nicola Waldman, private client partner at law firm Hodge Jones & Allen comments:

“This decision is hugely significant for cohabiting couples where one of them is working in the public sector. They could now expect to be entitled to their partner’s pension on their death, even if they have not been nominated in the relevant paperwork. Whilst the equivalent regulations for local government schemes in England, Wales and Scotland were amended in 2013/2014 to remove the nomination requirements, this judgement may now impact on the rest of the public sector.

“For those with private sector pension schemes, most provide for unmarried partners. In cases where they don’t however, I would expect this to be reviewed in the light of the judgment.

“What is particularly interesting about this case is whether it will spark fresh legal challenges in other areas of perceived discrimination against cohabiting couples, including inheritance tax and capital gains tax. In this judgment the Supreme Court has said that it was the duty of the state to secure Ms Brewster’s right to equal treatment under Article 14 of European Convention of Human Rights (ECHR) rather than setting out a requirement that this right must simply be respected. If the state must be proactive in promoting equal treatment, then we could see this argument used in relation to the tax regime. Our inheritance tax laws for example, allow married couples and civil partners an exemption from tax altogether whilst cohabiting couples are only exempt up to £325,000, impacting many who own property together. Similarly, there are capital gains tax benefits where spouses and civil partners can transfer assets to each other at no loss or no gain – this is not possible for co-habiting partners. It is feasible that cohabitees could now argue that these differences amount to discrimination, with huge implications for the tax regime in this country.”

Ends

Notes for Editors

Hodge Jones and Allen

  • Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice. Its senior partner is Patrick Allen and managing partner is Vidisha Joshi.
  • For almost 40 years’ the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
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