Brewing Up Reasons: Re Brewster’s Application [2017] UKSC 8

There is a very interesting discussion in a recent UK Supreme Court case — Re Brewster’s Application [2017] UKSC 8 — of how much deference courts should afford to post hoc rationalisations of administrative decisions.

Brewster’s fiancé died suddenly. He had been entitled to a government pension. His cohabiting survivor (Brewster) was entitled to receive his pension. But she had to have been nominated. And the agency that administers the pension scheme never received a document nominating her. Accordingly, it refused Brewster’s application. She sought judicial review, alleging based on Article 14 (equal treatment) and Protocol 1, Article 1 (property) that the nomination requirement for unmarried partners amounted to unlawful discrimination.

Those familiar with ‘nudge’ theory will not be surprised to learn that the general tendency in this area has been from opt-in schemes (where the pension holder has to actively choose another beneficiary) to opt-out schemes (where those in a close family relationship with the pension holder are presumed to be beneficiaries, subject to the pension holder’s right to exclude them). In England and Wales and Scotland, the nomination requirement has been removed: see paras. 6-16 and 24-26.

But the nomination requirement was never removed from the relevant Northern Ireland regulations, even though it was difficult to identify the purpose the requirement served (at paras. 23 and 30). By contrast, married partners and those in a civil partnership were not subject to the nomination requirement: their entitlement arose automatically (at para. 36).

A review of the legislative and regulatory history drove Lord Kerr to the following conclusion: “The only discernible reason operating at the time the 2009 regulations were made was that it was considered necessary and/or desirable that they should mirror the provisions in England and Wales” (at para. 37).

But a better reason was proferred, post hoc:

It is the view of the Department that these [procedural] requirements are reasonable and proportionate measures designed to establish in a formal manner, the intentions of the deceased about a matter which has testamentary significance. Furthermore, cohabiting relationships are different from marriage and civil partnerships insofar as they may be commenced and ended without legal formality and do not involve a change of an individual’s legal status. The Department is of the view that if a Scheme member chooses to have a cohabiting relationship which is neither marriage nor civil partnership, the requirements of the 2009 Regulations are an appropriate means by which to determine the existence, formality and status of the relationship in addition to obtaining independent verification of the deceased’s wishes (quoted at para. 38).

Given that the parties agreed that Brewster had a property right under Protocol 1 Article 1 and a protected status under Article 14, the question was whether the discriminatory treatment of unmarried cohabitees relative to those in a “formal” relationship could be justified.

Ordinarily, in the “field of socio-economic policy”, government authorities have a “wide margin of discretionary judgment” (at para. 49). After all, “[w]here a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled”, for “[d]ecisions on social and economic policy are par excellence the stuff of government” (at para. 64).

However, “the margin of discretion may, of course, take on a rather different hue when, as here, it becomes clear that a particular measure is sought to be defended (at least in part) on grounds that were not present to the mind of the decision-maker at the time the decision was taken” and accordingly “the court’s role in conducting a scrupulous examination of the objective justification of the impugned measure becomes more pronounced” (at para. 50). Some “respect” should be given even to “retrospective” justifications that are within a decision-makers “sphere of expertise”, but they will be subject to “greater scrutiny” (at para. 52).

Viewed in this light, the justifications were found wanting, even the argument that a bright-line rule was necessary to streamline the administration of the scheme:

In the present case, no thought was given to possible difficulties with administration that might arise if the nomination procedure was not included in the new scheme which the 2009 Regulations introduced. Indeed, even after the appellant’s challenge was made, DENI has not been able to produce tangible evidence that there would be significant problems in administering the scheme if the nomination requirement was abandoned. Vague suggestions as to the workability of the scheme and the advantages of actuarial predictions were made but these were not supported by evidence. It is also significant that in England and Wales, where a significantly greater number of applications require to be transacted, it is considered that the nomination procedure is not necessary. I consider, therefore, that the desirability of a bright-line rule is, at most, of marginal significance in this case (at para. 62).

The respondent here was “motivated solely by the desire to maintain consistency” between Northern Ireland and England and Wales (at para. 64).

It is perhaps worth noting, however, that although Lord Kerr cited with approval the views of Lord Mance and Lady Hale in Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420 — to the effect that where a decision-maker has not considered a problem its views will be entitled to less weight — he did not go so far as to say, as Lord Mance and Lady Hale did, the Court had “no alternative but to strike the balance for itself, giving due weight to such judgments as were made by the primary decision-maker on matters he or it did consider” (Miss Behavin’, at para. 47).

Instead, “the attempt to justify retention of the procedure on those grounds was characterised by general claims, unsupported by concrete evidence and disassociated from the particular circumstances of the appellant’s case” (at para. 65), such that the nomination requirement was unlawful (at para. 67).

This content has been updated on February 14, 2017 at 12:14.