Ms Sinéad Lucey:

FLAC is grateful for this opportunity to appear before the Joint Committee on Social Protection, Community and Rural Development and the Islands to inform its pre-legislative scrutiny of the general scheme of the Social Welfare (Bereaved Partner’s Pension) Bill 2024. Our evidence and our written submission, which has been circulated to members, are informed by FLAC’s experience in providing legal assistance to members of the public.

As an independent law centre, FLAC frequently acts on behalf of clients in social welfare matters, including cases before the social welfare appeals office and the courts. The purpose of the legislation outlined in the general scheme is to give effect to the Supreme Court’s decision in the O’Meara case earlier this year. FLAC represented the O’Meara family in that case. We welcome the progression of legislation to provide clarity in this area as since the decision FLAC has regularly been contacted by families and representative organisations seeking information and advice on the implications of the O’Meara judgment on their welfare rights.

What is outlined in the general scheme proposes to give effect to the O’Meara judgment by expanding entitlement to social welfare schemes aimed at bereaved partners and families to qualified cohabitants and their children. We very much welcome the decision to include bereaved cohabitants who do not have children and the use of the pre-existing legal definition of “qualified cohabitant”. However, we have a number of concerns with the provisions outlined in the general scheme and will present those now. At present, people who are separated or divorced from a spouse or civil partner may access a survivor’s pension if that spouse or civil partner dies, provided that he or she, the surviving partner, has not remarried and is not cohabiting with someone else. The general scheme would remove this entitlement and people currently claiming on this basis would lose their payments after the enactment of the proposed amending legislation. In FLAC's view, there is no clear rationale for this change. Indeed, it may run contrary to the principles underpinning the O'Meara decision. In the O’Meara case, the Chief Justice placed an emphasis on "the rights of all children, and obligations of their parents, irrespective of the status of their parents”. Legislation which treated the children of cohabiting parents less favourably than the children of married parents or civil partners was declared unconstitutional. We do not see any objective justification for the introduction of legislation which distinguishes between the children of separated or divorced parents and children whose parents are married, in a civil partnership or cohabiting.

Further, the rules around access to the contributory version of the survivor’s pensions currently provide for favourable treatment of people and families who have suffered multiple bereavements. This means that people who suffer the loss of a second partner are able to claim the pension or rate of pension which they previously received after the loss of their first partner. This is reasonable and compassionate in the circumstances. Under the provisions set out in the general scheme, those who suffer the loss of a second partner before the enactment date will still to be able to claim the pension, or rate of pension, they were entitled to after the loss of their first partner. However, and we say rather arbitrarily, those who suffer a second bereavement after the enactment date will not be able to avail of this exception to the general rule whereby remarriage extinguishes entitlement to the pension. Again, there is no clear rationale for the levelling down of social welfare entitlements in this area.

The general scheme provides for the payment of death benefit and pensions for surviving qualified cohabitants with effect from 22 January 2024, that is the date of the Supreme Court judgment in the O’Meara case. However, the extent to which this will give rise to any entitlement to arrears starting from 22 January 2024 is unclear in light of the strict rules around the backdating of claims, which are set out in our submission. There may be many people whose entitlement to payments pursuant to the provisions set out in the general scheme arises from the loss of a cohabiting partner long before 22 January 2024. The general scheme makes no provision for payments to surviving qualified cohabitants in respect of the period prior to 22 January 2024.

In light of our analysis, FLAC would like to make a number of recommendations. The committee should recommend that the eventual Bill should: retain the current entitlement of divorced and separated partners to a survivor’s pension and also expand it to surviving qualified cohabitants who were separated rather than taking the levelling-down approach suggested in the general scheme; and retain the favourable treatment afforded to those who have lost two partners and expand it to include situations where the bereaved and the deceased were qualifying cohabitants in either or both instances.

The committee should seek clarity from the Department of Social Protection on: the approach which will be taken to arrears and, in particular, whether it is intended to pay arrears beginning from 22 January 2024 to surviving qualified cohabitants whose entitlement to a pension arises from a bereavement prior to that date; the number of people who have previously been refused access to a survivor’s pension on the basis that they were not married or in a civil partnership with their partner; and whether it intends to re-examine those decisions or provide compensation for the periods prior to 22 January 2024 during which survivor’s pensions were unavailable to surviving qualified cohabitants.

The legislation outlined in the general scheme would amend the social welfare code in a manner which could give rise to changes in the entitlements of thousands of individuals and families. The right of access to justice requires measures to ensure that people are aware of their legal rights, and how changes in the law may impact them. The committee should recommend that the Department carries out a targeted take-up campaign and ensures that information and advice is available to those whose entitlements will be impacted by the new legislation. This would include, for example, a helpline. The committee should also recommend that the Department provides detailed guidance and training to decision-makers. Specifically, this should deal with decisions on whether an individual was a qualified cohabitant, and with backdating claims for survivor's pensions made by people who were previously excluded because they were a cohabitant. The committee should recommend that the Department collaborates with the Citizens Information Board and relevant representative organisations, such a Treoir and One Family Ireland, in promoting take-up and providing information and advice. These groups should also be provided with access to relevant training and guidance.

The general scheme is proof that rights and equality for diverse families, such as families based on cohabitation, can be effectively enhanced through ordinary legislation. We hope that this progress will be built upon in the future through the provision of practical supports for diverse families, including single-parent families, in social welfare and other areas of law. The committee should engage with relevant representative organisations, such as Treoir, One Family Ireland and the National Women's Council of Ireland on the general scheme, as well as on the treatment of diverse families in the area of social welfare more broadly. My colleague Mr. Christopher Bowes and I are happy to address any questions which members of the committee may have. I thank the committee for its attention.

Marc Ó Cathasaigh (Waterford, Green Party)
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I thank Ms Lucey for the opening presentation and the briefing material. As the Chair said, it is very useful and has certainly educated me on the provisions of the Bill. It is worth noting that the Department's quick response to the decision of the Supreme Court is welcome. Along with many others, I welcomed the decision of the Supreme Court. It addressed a very important issue, but I must praise the Department for turning legislation like this around as quickly as it has done. I am sure we all agree with the desired outcome, even if we differ on how it is being gone about. The witnesses might explain two things to me. When Ms Lucey says that FLAC does "not see any objective justification for the introduction of legislation which distinguishes between the children of separated or divorced parents and children whose parents are married, in a civil partnership or cohabiting", is she saying that this legislation differentiates between the treatment of those two groups?

Ms Sinéad Lucey:

Yes, on the basis that a cohort who were previously entitled to these payments - partners who are previously divorced or separated civil partners - could apply for the pension on the death of their ex-spouse or ex-civil partner. As far as we understand it, that will now be taken away under the general scheme. That entitlement for those claimants would now be reversed. The concern arises from the fact that even in a situation of divorce or separation, there may still be a dependency between those ex-spouses or ex-civil partners. There may also be children involved. There may still be a loss to that family, but now they will not have resort to the pension that they would have had previously.

Marc Ó Cathasaigh (Waterford, Green Party)
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My second question refers to levelling down. Is this the levelling down that Ms Lucey is speaking of?

Ms Sinéad Lucey:

Yes.

Marc Ó Cathasaigh (Waterford, Green Party)
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Could she walk me through a practical example of that, so that I have a better grasp on it?

Ms Sinéad Lucey:

I referred to a married couple with children, who then divorce or separate. One of the ex-spouses may be caring for the children and receiving financial support from the other ex-spouse, who is working. In those circumstances, if one of those parents dies, currently the surviving parent can apply for the pension and their children would be entitled to a payment. Under the general scheme, that entitlement would be lost. Even if that person loses a support that might be through childcare or a financial provision, the State will no longer be obliged to provide them with that or access to that pension. That is our concern in that area. Again, there is a differential treatment of families. This change does not seem to follow from the O'Meara judgment. Indeed, we are concerned it might be in breach of the principles regarding equality set out in the that judgment.

Mr. Christopher Bowes:

I might add to that. There would be families that are currently in receipt of the payment on that basis. The existing legislation provides for these families, where there has been a separation or divorce, to receive the payment. This amending legislation would remove that entitlement, with effect from the date of enactment. This would have the effect of taking a payment away from a family or individual who is currently in receipt of it on that basis. In addition, people who will end up in that situation in the future will no longer be able to receive that payment on that basis. To add to what Ms Lucey was saying, the legislation is nuanced in this area, and it fills a gap. It provides that where a separated or divorced partner subsequently remarries or begins cohabiting with someone else, their entitlement will be removed. It does not matter whether they are cohabiting or if they remarry or enter a new civil partnership - their entitlement will end. This legislation is designed to address the gap or period where the financial support is not there from having a spouse or a civil partner.

Paddy Burke (Fine Gael)
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I welcome the witnesses today. They have brought a good amount of clarity to the Bill. I want to briefly ask about retrospective payments. How far back do the witnesses think it should go?

Ms Sinéad Lucey:

We have not specified a period for that. Certainly, payments should be paid from 22 January 2024, when the Supreme Court judgment crystallised the entitlement of cohabitants and their children to the payment. We are aware from members of the public who have contacted us, and through organisations like Treoir and One Family Ireland, that there are historical cases where there was great hardship to cohabitants who could not access the payment. It is really about engagement with those organisations and looking at the various scenarios to see whether the scheme as it is could be extended. We should also look at whether there might be an ex gratia payment in certain circumstances to look at those of situations of hardship. We have not set out a period because this is an area where more examination is needed of the various circumstances that arise, as well as the circumstances and particular hardship experienced at the time by those not able to access the payment. We are aware that there may have been people who applied for the payment and were refused because they were cohabitants, or were advised not to apply at the time because they had no entitlement. The Department should examine whether something could be done as well for those families.

Paddy Burke (Fine Gael)
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I am not so sure that we can-----

Mr. Christopher Bowes:

What might be helpful in starting the process of looking at this issue is if the Department would be able to set out what information it has about how many people might have applied for it in the past, in that period before 22 January 2024.

Even beyond that, there is the question of whether it has done any sort of calculation on how many people may have been entitled to it during the period prior to that date who, even if they have may not have applied, could have had the entitlement that was subsequently recognised in the Supreme Court decision.

Paddy Burke (Fine Gael)
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I do not think we can legislate for retrospective payments. I am not so sure we can do that. Is this different because of the Supreme Court's decision that we are now acting on foot of?

Ms Sinéad Lucey:

I do not think the you could legislate. The Senator raises a good point that, generally, retrospective legislation is not appropriate. That would be particularly so where you are imposing a retrospective liability. To provide a retrospective benefit to people would not fall foul of the same difficulties.

We have raised this issue because we have been contacted by people in this situation who have been watching the case and wondering whether it would bring any benefit to them or whether there might be some element of retrospectiveness to it. In fairness to those people, we just want to raise that issue at this point to see whether the Department could examine some kind of scheme that might acknowledge its loss. It might be historical at this stage but it does appear that there were cases of great hardship as a result of people not being able to access the scheme before now.

Paddy Burke (Fine Gael)
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Did the court establish whether it is the kids who get the money or is it the parents or the couple who get it? If the payments are made, is it because of the couple or is it because they have kids? Who is entitled to the money? Is it the kids who get the money?

Ms Sinéad Lucey:

It will always be the parent who will be the applicant for the money. Under our social welfare system, there are no payments that go directly to children such. I refer here to child benefit and payments like that. It will always be the parent who will apply on behalf of themselves and their children.

In the Supreme Court case - and obviously that is the genesis of this general scheme - the circumstance of a cohabitant with children was specifically looked at, and it did not go beyond that. That is why we welcome the fact that in the general scheme, the payment is not wholly tied to having children. Cohabitants without children would have an entitlement as well. That probably goes beyond what would be required by the Supreme Court judgment.

Mark Wall (Labour)
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I thank our guests this evening. Obviously, I am interested in this. I introduced a Bill in the Seanad to try to address this matter when we dealt with Johnny O'Meara down in Tipperary. Like Deputy Ó Cathasaigh, I welcome the Government moving quickly to draw up this very important general scheme.

I want to talk about arrears. On foot of the Bill we introduced in the Seanad and the work we did with Treoir and others, I believe there are many people awaiting an outcome, let us call it arrears-----

Mark Wall (Labour)
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I am sorry. I am back again.

We did an awful lot of work with Treoir. As the witnesses said, people coming to us that had gone through hard times. There are many people waiting to see if ex gratia payments or arrears are going to be provided for in the eventual Bill. In whatever way it can do it, the Government has to facilitate such payments. A lot of people suffered as a result of not getting this payment over many years.

We are all asking the question Senator Burke asked, namely how far back should it go? Our committee should be looking at some sort of ex gratia payment or payment of arrears to so many who have suffered. I have dealt with many people, as have Treoir and FLAC. It is important that this matter is teased out and that the committee deals with it.

I have one further question. It is relates to FLAC, what it has done and the number of people it has spoken to. Ms Lucy outlined the way the general scheme is set up. What is proposed will be for people, cohabiting couples or a surviving cohabiting person who has either two years with children or five years with no children. The question we were asked when we were bringing the Seanad Bill through was what defines a cohabiting couple. Is it five years without children or two years with children? Maybe we could get a response from FLAC as to whether it is happy with that definition of a family, as I would call it, or a cohabiting couple in this case.

Mr. Christopher Bowes:

I will deal the question of arrears first. For the sake of clarity, it is important to say that the general scheme does not deal at all with the period prior to 22 January 2024. It just deals with the date of the Supreme Court onward, so anything else the Senator mentioned, like an ex gratia scheme, is not covered under or does not arise under this general scheme. As we stated in our submission, there are questions even around the approach that would be taken, and maybe this is more a matter of the Department's own approach as a matter of policy in how it deals with arrears for respective periods from 22 January 2024 until the date of enactment.

I will move on to the definition of "cohabitation" that is used. The definition of "qualified cohabitant" from the 2010 legislation that deals with civil partnership and cohabitation is used. As we said in our submission, we are happy with that definition just because it is an existing legal definition that performs as a good basis. The particular benefit of that approach is that the courts have experience of making decisions on the basis of who satisfies that definition, and that could inform the approach the Department of Social Protection and its deciding officers take. There are specific provisions in the general scheme around the introduction of legislation to support decision-making in respect of that definition. I refer here to regulations that would specify the kind of documentation that needs to be provided by someone who has suffered a bereavement to establish they were a qualified cohabitant with their deceased partner. From that perspective, we would be happy with the definition being used in the general scheme.

Mark Wall (Labour)
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I am happy with that response. The important point for me is that the surviving partner has to provide that information to outline whether it was five years without children or two years with children. As has been said, it is already working. We have to be careful that we define that in the eventual Bill. We must also ensure that we do not set about reinventing a wheel. As has been said at this committee previous and as the Chair has said, during a bereavement, it is very hard to gather up that information to prove a point. Deciding officers then have to make their decisions on the basis of that information. It is very important that this is defined and that we use the existing legislation. I thank Mr. Bowes for the reply.

Ms Sinéad Lucey:

The Chair asked whether we could be back to the courts again. That was our motivation for raising this issue at this point. In our more detailed submission, we have taken extracts from the Supreme Court judgment that set out the principles that were established through the judgment and that should now inform the legislation. The Department may say something else, but we find it difficult to understand that there could be an objective justification for making that distinction between children of a divorced couple and children of cohabitants. The Supreme Court was certainly critical of the fact that if divorced parents could access the payment, then it did not seem to serve the purpose that the Department was saying in the courts it was serving, namely to support marriage and so on. However, we now see the reverse happening. It is certainly possible that somebody could say they are being deprived of the payment and their children and family are being treated less favourably than the children of a family based on cohabitation. They might ask where is the justification for that and consider getting legal advice on that issue. It is certainly a risk and is something we felt it was important to highlight to the committee and to raise for the Department to consider.

I agree with the Chair regarding the point on arrears. We have been contacted by people who sought legal advice at the time of their bereavement and they were advised by solicitors and lawyers not to apply. They are left in a very difficult situation now where they did not apply and did not assert an entitlement at the time, based on advice. Do they have any entitlement left? We certainly feel it is something that should be looked at, maybe not as a matter of law but as a matter of compassion. The Chair is probably right that, ultimately, the number of people affected might be a small enough cohort, but why not give them an acknowledgement of that hardship going forward?

I will turn to Mr. Bowes in regard to the quite complex question the Chair asked about a cohabiting couple where the children are not of the relationship.

Mr. Christopher Bowes:

It is clear that this refers to both individuals, as parents of the dependent child, in order to avail of the two years. It is another area where it might be worth talking to organisations like Treoir which have the experience of looking at how this operates in the family law context. That is one of the benefits to the approach here, given this definition is used for those sorts of family law applications under the 2010 Act. It might be worth getting their take, based on their experience of those sorts of situations where there may be children involved but where they are not the children of both parents within that cohabiting relationship.

I would make one point. The fact that it is centred around children of both parties to the existing cohabiting relationship might be based on the fact that this scheme is designed to basically fill the gap where one of those parents is not able to provide for the children, in this case in the event of their death. Given the fact it relates directly to the parents of the children, it might be linked to their role as providers of financial support to those children, whereas other children might have other parents who provide the same sort of support.

I will move on to the question of the implications of the judgment beyond the schemes that are covered in the general scheme. There are a number of payments, including the non-contributory version of the survivor's pension, death benefit under the occupational injuries scheme and what will now be called the bereaved parent’s grant, which is covered. All of those schemes, prior to the enactment of this proposed amending legislation, were an exception to the general rule in the social welfare legislation which recognises cohabiting relationships. For most people in receipt of the standard weekly social welfare payment, the increase in respect of a qualified adult would cover a cohabitant in addition to a spouse or civil partner, so it would actually bring it in line with the rest of the social welfare code in terms of recognising cohabitation.

In terms of recognising the children, which was the specific point raised by the Chair, in his judgment, the Chief Justice looked at previous decisions which had upheld social welfare schemes that deprived certain children or families of access to payments. One that he looked at in particular was the Michael decision, which looked at the entitlement of families in direct provision to child benefit. The Supreme Court upheld that those families could not access the payment on the basis that there was basically an objective justification for it, which in that case was the State's right to impose a habitual residence condition.

The status of the parents was an objective policy criterion for determining access to social welfare payments. It was very clearly established in this case that some level of objective rationale was needed if certain families were to be deprived of a payment. The Chief Justice said that, in this instance, no objective rationale could be identified for depriving the children of cohabitants of access to the payment. That principle certainly will apply as we go forward. As has been noted, there was a real emphasis placed on the status of the children and the rights of children and families in the reasoning of the Chief Justice in his decision.

Éamon Ó Cuív (Galway West, Fianna Fail)
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It is interesting that the figures involved are very small. For widow's, widower's or surviving civil partner's contributory pension, the headline figure is 124,896 recipients. However, it is important to look at the age breakdown. Everybody over the age of 66 has a right to some kind of pension, either a contributory pension or, if they do not have that, a non-contributory pension. The numbers for the latter group are very small. There are only 19,000 widows with a non-contributory pension.

The interesting point is the breakdown across age groups. For the under-35s, the numbers are 87 females and 15 males. In the next age group up, those figures are 423 and 122, respectively. I am sorry for giving the long-winded version but it is the only way I can show what I mean. There are 916 recipients aged between 40 and 44. The age cohorts continue in five-year jumps. When we get to those aged 60, the numbers are 8,000 females and 2,900 males, which is a total of nearly 11,000. It is only beyond that age that the numbers really begin to jump, as we would expect. When we get to age 75, the figures are 18,000 females and 2,600 males. I have not had a chance to disaggregate the figures fully. The point I am making is that if the numbers are so small for widows and widowers in the conventional sense, then the Cathaoirleach's surmise is totally correct that the number of cohabiting couples will be equally small in those age groups. As I said, we can really discount the pension-age group because those people have entitlements in any case.

Ms Sinéad Lucey:

It is logical that bereavement will be unusual in younger couples and more usual as people progress in years. However, the impact of the loss is probably a lot more intense at a younger age.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Ms Lucey seems to be missing my point. All public officials have a computer in their head for figures and costs. Disaggregating the figures, the cost of the widow's and widower's pensions for people under 66 is relatively small, surprisingly so. I knew it would be small but the figures show it is a very modest number. If we take that very modest figure, the cost implication of extending the benefit is unlikely to be significant. That is the point I am making. The vast majority of widows and widowers have an entitlement. I am raising the age factor because people have an entitlement in any event if they are over 66.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The other point is that it seems to be the case that payment will not be automatically backdated. Some people might get it backdated if they applied at the time. I would have thought that could not be done in that there was no way of applying. Nobody has issued any formal statement saying people can apply for widow's pension retrospectively and they should put in an application. I am interested in Ms Lucey's view as to whether this issue would stand up for five minutes in a court when there was no way of making an application and nobody was advised to do it. It was always the case that if people were wrongly advised on anything by the Department of Social Protection - if they got an overpayment and could prove they were wrongly advised, for example - they would be on solid ground, although they would have to be able to prove it. In this case, we can prove that nobody was advised to apply. There was no public campaign advising people to put in an application form. In fact, there was no way of putting in a claim. Therefore, I am very surprised that anybody could think it would be legally sound to say that if people applied for this mythical thing that does not exist, they are in, and if they did not apply, they are out. We are talking about very small beans, as the figures prove. I accept the tsunami theory. There has to be reality about State expenditure. However, in this instance, there does not seem to be any cause for concern, in the context of the Department's expenditure of €27 billion or €28 billion.

Ms Sinéad Lucey:

Yes, individuals have contacted our telephone line and set out scenarios wherein they sought legal advice and the advice was not to apply. Some people did apply, were asked for a marriage certificate and were then refused. There are different scenarios and people are impacted in different ways. Treoir has been gathering evidence from individuals as to how they have been impacted. It is gathering stories about the experiences of individuals.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Normally, a claim for a back payment goes back six months, with the possibility to go back further in exceptional circumstances. If an announcement were to be made tomorrow, we would be talking peanuts, as I said. It is the maddest thing I have ever heard that we would not go back in this case. If we are going back for one, we should go back for all. Does Ms Lucey agree this could be challenged? It seems odd that people were meant to have applied for something that did not exist. People could not get an application form and, as Ms Lucey said, they were rejected if they did apply. In some cases, people did not bother applying because they read on the form that applicants had to be married.

Ms Sinéad Lucey:

There are two different groups.

Since 22 January and the Supreme Court judgment, we have been recommending that people put in their application now. Even if it is held, they will have asserted their entitlement to the payment at that point. We are recommending that anybody who has a current entitlement should get that backdated from 22 January 2024 onwards. There are people who do not have an entitlement now and were historically removed or excluded from the payment, which raises separate considerations as to how to deal with that cohort.

On the basis of the Supreme Court judgment, that cohort who no longer have a current entitlement are probably not covered by the Supreme Court judgment but that does not prevent the Department from looking at their situation. With a little imagination, there could be a scheme to acknowledge that cohort which, as Deputy Ó Cuív said, is probably relatively small but suffered particular hardship at the time from not being able to apply at all.

Mr. Christopher Bowes:

With regard to the first cohort Ms Lucey spoke about, those who may have an entitlement with effect from 22 January 2024, it is, as Deputy Ó Cuív said, worth looking at the rules around backdating for six months where there is good cause. The Department has adopted policies previously where legislative changes have come within that definition of good cause. It would be worth looking for clarification as to the approach that will be taken in this case. It is also worth pointing out that by the time this legislation is enacted, it will have gone just beyond the six months. It is important to make sure people are conscious of that. There may be a need to examine how a policy of backdating to 22 January 2024 would interact with the legislation and the regulations on backdating of claims. The Deputy mentioned that it would be fairer to backdate all claims where the bereavement arose before 22 January 2024. There may need to be some small or consequential amendments to facilitate the Department putting in place a policy to that effect.

Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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I do not have any particular questions. I just want to apologise for arriving late. I was in another meeting. I thank the witnesses very much for the submission and opening statement. This meeting has highlighted very clearly the issues and will be very useful for our engagement with the Department. The complexities around backdating will require a lot of consideration. The points have been very well made. I commend the witnesses' work in getting this issue this far and their support for the O'Meara family. It is an important change of legislation but it is also important that we get it right.

Éamon Ó Cuív (Galway West, Fianna Fail)
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There are about 30,000 potentially eligible people under 66, give or take. I cannot get an accurate figure because it goes to 65, but it is not hundreds of thousands. There are 30,000 people on contributory pension, while the figures for non-contributory pension are tiny. They only exceed 100 in the 70-year age bracket. We then have the issue of entitlement because people may get the one-parent family payment and so on. That is why the number is so small. We are talking about 30,000 people. Therefore, it is reasonable to surmise that if this were to be extended, we would not hit big numbers.

Mr. Tim Duggan:

I thank the committee for the invitation to attend this evening to discuss the general scheme of the Bill.

As the committee will be aware, on 22 January 2024, the Supreme Court delivered its judgment in the O’Meara case which related to the refusal to award a widower’s contributory pension to a surviving cohabitant. This judgment overruled an earlier High Court decision and found in favour of Mr. John O’Meara and his children. In simple terms, the court found that section 124 of the Social Welfare (Consolidation) Act 2005, as amended, is inconsistent with the Constitution insofar as it excludes Mr O’Meara from the category of persons entitled to benefit from it. The court also quashed the decision of the Minister for Social Protection to refuse Mr O’Meara a widower’s contributory pension.

The court reached its conclusion on the basis of the equality guarantee contained in Article 40.1 of the Constitution. It is important to note that the majority of the Supreme Court did not find that Mr. O’Meara, the late Ms. Batey and their children were a family within the meaning of Article 41 and, therefore, the proposals contained in the general scheme are about implementing the changes in a manner that is consistent with the provisions of Article 40.1.

The court also highlighted a number of anomalies in the legislation, including the availability of the payment to divorced persons whose former spouse had died and also that while cohabitation would disqualify a person from receipt of the payment, that same status could not qualify them to receive it. In reaching its conclusions, the Supreme Court judgment recognises that it would require a legislative amendment to positively provide for the benefit in the case of the O’Mearas.

While on the face of it, the response to the judgment is to extend eligibility for the widow’s, widower’s or surviving civil partner’s contributory pension to cohabitants, this is not a straightforward task. I will refer to the pension as WCP from now on to make life easy. It should be borne in mind that the facts of the case before the court related to a committed relationship of 20 years' duration, with three children. The Supreme Court did not draw a line on where entitlement to the benefit should arise or what factors should determine entitlement. It is, therefore, a matter for the Oireachtas to determine these issues. In addition, the expansion of eligibility for the scheme to cohabitants also requires rules around when entitlement ceases under the scheme and in a manner that has regard to the equality guarantee in Article 40.1

Taking all of that into account, the general scheme proposes a number of changes to the WCP: first, to extend eligibility to the payment to qualified cohabitants who are in an intimate, committed and exclusive relationship for a period of five years, or two years where there are children of that relationship; second, to set out the effective date from when a qualified cohabitant becomes eligible for a pension; third, to provide for rules on when entitlement to the payment will permanently cease; and fourth, to provide for similar amendments to other related social welfare schemes. I propose to sketch out the broad parameters of each of these elements as contained in the general scheme.

In broadening eligibility as proposed, the definition of a surviving cohabitant will be broadly analogous to qualifying cohabitants as defined in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The Act provides an existing framework for establishing the existence of cohabiting relationships of a particular form that provide rights and obligations to those cohabitants. The Supreme Court noted that the State had already defined cohabitation within this Act. Reliance on the existing legal framework is, therefore, a reasonable approach for the Oireachtas to adopt in regulating access to WCP. In recognition of the change in eligibility, the scheme name will be changed from WCP to the bereaved partner’s contributory pension.

In respect of the effective date for eligibility, it is proposed that deaths before the date of the Supreme Court judgment would be considered for eligibility for WCP. However, it is proposed that payment of WCP will commence only from the date of judgment at the earliest in the case of a death that occurred prior to that date, and from the date of death for claims after 22 January 2024. With respect to loss of entitlement, under section 124(2) of the 2005 Act, as is, any person in receipt of WCP shall be disqualified for receipt of WCP “if and so long as he or she is a cohabitant”. The definition of "cohabitant" for these purposes, as set out in section 2 of the 2005 Act, is based on section 172(1) of the 2010 Act. This means that the time periods required for a qualifying cohabitant are not required. As a result, WCP eligibility ceases immediately when the recipient begins cohabiting with another person but recommences once the person stops cohabiting. In contrast, if a person in receipt of WCP marries another person he or she loses the entitlement to WCP until he or she is again widowed, even if the relationship breaks down. Therefore, under the current rules a person loses entitlement to WCP on a temporary basis while cohabiting, but remarriage leads to a more permanent loss of entitlement. To address this anomaly, it is proposed that under WCP if the period of cohabitation meets the conditions of a “qualified cohabitant”, that is, two years with children of that new relationship and five years if otherwise, then this results in a permanent loss of entitlement to the payment based on the death of the former or previous partner.

Regarding eligibility after relationship breakdown, separation or divorce, under current legislation a person may retain eligibility for WCP after divorce. This anomaly was noted by the Supreme Court as a consideration in the ruling. It is proposed to address this anomaly by removing eligibility of divorcees to WCP. It is, therefore, proposed that eligibility to WCP would end upon divorce, similar to the loss of entitlement due to remarriage or on becoming a “qualified cohabitant” again. A saver is provided in this general scheme for those divorcees already in receipt of a WCP. In the case of a qualified cohabitant, eligibility for the new bereaved partner's contributory pension will cease two years after the breakdown of the relationship, in line with similar provisions in the 2010 Act. In the case of a married couple who separate, a similar rule will apply.

As a result of the Supreme Court decision, the Department has reviewed its related schemes and decided that several will be amended along the same lines as WCP to now include qualified cohabitants. These are the widow, widowers widow’s, widower’s and surviving civil partner’s non- contributory pension, the widowed or surviving civil partner grant and the death benefit scheme under the occupational injuries scheme.

I hope the combination of this short summary of the objectives of the measures and the explanatory notes in the general scheme have given the committee the information it needs to consider these provisions but my colleagues and I are more than willing to address any queries, clarifications or concerns members may have.

Marc Ó Cathasaigh (Waterford, Green Party)
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In the first instance, I reiterate what I said to the previous witnesses that the Department is to be praised for turning this legislation around so quickly after the Supreme Court judgment that gave rise to it. That judgment clearly created a need for us to respond in a legislative fashion and the Department has done so very quickly.

I will make a number of points, some of which are in response to the evidence we heard from FLAC earlier.

I will quote from the summary of evidence given to the committee by FLAC, which states:

At present, people who are separated or divorced from a spouse or civil partner may access a survivor’s pension if that spouse or civil partner dies, provided that he or she, the surviving partner, has not remarried and is not cohabiting with someone else. The general scheme would remove this entitlement and people currently claiming on this basis would lose their payment after the enactment of the amending legislation. In FLAC's view, there is no clear rationale for this change and indeed, it may run contrary to the principles underpinning the O’Meara decision.

I understand that the principles of the O'Meara decision related to the children who were involved but I stand to be corrected. The worry is that we will land at a point where we have differential treatment of families based on whether they are separated, divorced, married, in civil partnership or cohabiting. If that concern has been legitimately raised by FLAC, we may find ourselves before the courts again, which is not where we want to be.

The second point I want to raise relates to the effective date for eligibility. I understand how the date of the judgment would be arrived at as the starting point but the judgment itself is retrospective and stated that the person had to be paid. Am I correct? The Supreme Court gave a judgment that the pension was to be back paid. I wonder if we can stand over the commencement date and use the date of the judgment as the earliest in the case of a death that occurred prior to that date. Those are the two main issues I want to put. Are we creating a differential in the treatment of families? Can we stand over that commencement date?

Mr. Tim Duggan:

Any person currently in receipt of a payment under the widow's, widower's or surviving civil partner's pension scheme will not lose their entitlement. It is proposed to insert the saver clause, as I said in my opening statement, into the legislation for anyone affected by the rule changes who is already in receipt of a payment. Nobody who is currently in receipt of a payment will lose one. That is important to note.

I am not at all sure why it is being suggested that there is a differential in the treatment of children across various set-ups. Our view is that we are trying to bring in equality of treatment regardless of familial arrangements. We can talk that through in some detail if needs be. It is not clear to me why that suggestion is being made.

The issue of divorcees was noted by the Supreme Court as an anomaly. A person who is no longer married to somebody and is not in a relationship with that person may have no involvement with them of any kind whatsoever. The person may not have seen the other for 20 years, yet when one person dies, the other person gets a pension. That is anomalous in the view of the Supreme Court. It is anomalous because the person in receipt of the pension is not a widow or a widower of that person because they had divorced. That created a problem or tension that the Supreme Court felt needed to be addressed. It was part of the consideration the court used in reaching its judgment.

Marc Ó Cathasaigh (Waterford, Green Party)
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It is. The Cathaoirleach explained it better than I did.

Mr. Tim Duggan:

The issue of children was just one of the elements that was considered by the Supreme Court when it was teasing through the various facets of this case. It examined a whole range of elements. The judgment did not land exclusively on the fact that there were children in the relationship. It landed on a whole load of other things, including the fact that there were anomalies in the legislation as it is currently crafted, one of which is the fact that divorced people can access the widow's or widower's pension even though they were no longer married to the person when he or she died. We cannot simplify the situation to say it was about the children because it was about much more than that. If we were to take that narrow view of the court judgment, we would extend eligibility only to those who are in a cohabiting relationship where there are children of the relationship. We are making no such proposal. It is about much more than that. Equality of treatment goes beyond the fact that there are children in the relationship.

In the case of divorced couples, there is usually settlement when divorces occur. That is a legal process and a settlement usually arises from divorce. That settlement rarely, if ever, takes into consideration State pension payments or the potential for State pension payments into the future. It has never, to my knowledge, been a feature of such settlements or agreements on divorce. Therefore, to allow that situation to continue would be to result in the unequal treatment of people in different relationships. Somebody who is divorced would continue to have entitlement but somebody who remarries after a relationship breakdown would not. Somebody who went into a cohabitation situation would not have the same entitlement. That results in an inequality that could also be challenged constitutionally by somebody in the future. There is no obvious place to land with this. It is a matter of trying to strike balances and ensure that we treat everyone as equally as we possibly can. That is what we have tried to do in framing this legislation. It is a difficult thing to do without any direction of any kind from the court. The court provided no real assessment of why it landed on the equality piece or of what specific aspects led it to its conclusion in that regard. It provided no direction on what type of legislative fix would be needed to deal with its finding and, therefore, we have had to tease through all of the elements of this painstakingly to try to ensure that we do not introduce or allow to continue an inequality that would result in yet another case. Have we succeeded? I do not know. We think we have as best we can. Does that mean somebody will not try to take a challenge in the future? Of course it does not. Did we expect this challenge to result in this outcome? We did not, because numerous attempts have been made in the past to expand eligibility for widow's and widower's pension and in all cases, they were not successful, including at European level. Consequently, this is new territory. This is a new departure and we must tease it through bit by bit.

Obviously, the provisions that have been set out in the general scheme are now going to be teased through carefully by the Office of the Parliamentary Counsel and on the advisory side of the Office of the Attorney General.

It may emerge during the course of that analysis and assessment that an alternative approach to what is proposed in the general scheme may be required. It could equally emerge they are satisfied it stands up to the judgment and constitutional provisions that already exist.

Marc Ó Cathasaigh (Waterford, Green Party)
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My question was about taking the commencement date from the date of the judgment, and whether we can stand over that.

Mr. Tim Duggan:

With respect to the court finding in favour of Mr. O'Meara and his children, it recognised that legislation is required to positively provide the benefit in their case. Until legislation is provided, they do not have an entitlement. The court accepts that, which is why this type of legislation is needed. That is as far as I am willing to go with respect to the O'Meara case. The Deputy knows the Department does not discuss the specifics of individual cases in public, so I will not breach that rule this evening either. The law was law until 22 January. The Department had no basis before 22 January to make payments to people who were not eligible in accordance with the law as it was, and still is, specified. It would not have any basis to do it retrospectively either, prior to the date when the law was found to be unconstitutional. That is why it is proposed that payments for those where death occurred prior to the date of judgment would commence from the date of judgment, and dates of death subsequent to that.

Mr. Tim Duggan:

Yes, that is what we intend to do.

Éamon Ó Cuív (Galway West, Fianna Fail)
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At the end of the day there is a balance between what is practical and what is not. I accept the Department's challenge in trying to strike a fair balance in this one. It looks simple but there is always a case. I am curious as to whether we have any statistics or idea on the number of divorced people getting widow's contributory pension.

Mr. Tim Duggan:

I do not have it off the top of my head, but from memory it is relatively low. It is a few hundred.

Éamon Ó Cuív (Galway West, Fianna Fail)
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That is what I would have thought. I was looking at the statistics. If I take everybody over 66 out, there are approximately 30,000. That is for contributory; with non-contributory they would be entitled to something else. The number of widows and widowers is not enormous up to the mid-60s, based on the statistics. I did a quick tot on them.

Mr. Tim Duggan:

It is growing.

Éamon Ó Cuív (Galway West, Fianna Fail)
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It is growing, despite the fantastic healthcare in the country and everybody living longer?

Mr. Tim Duggan:

No, the number of people who are divorcing is growing.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I am not talking about that. I take the gross number of people who get widow's pensions, and take out the people over 66, because most of those would have an underlying payment of a contributory pension. Normally, when you get to 66 you are entitled to a State pension.

Mr. Tim Duggan:

Of some kind.

Éamon Ó Cuív (Galway West, Fianna Fail)
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The number of widows under 66, as you would expect, is quite small in the total. It is likely that the subset of those who are divorced is very small. It would be useful to get a measure of that because it is always good to know.

Mr. Tim Duggan:

I will try to get a precise number. From memory, it is in the region of the low hundreds.

Éamon Ó Cuív (Galway West, Fianna Fail)
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It would be great to have the figure for this.

Mr. Tim Duggan:

I will try to get that number.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Can we get something for that? You know yourself. The Department thinks about cost. We think about the number of people coming into the constituency clinics - the hard luck cases.

Mr. Tim Duggan:

We try to do that too.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I know, but Mr. Duggan gets my point.

Mr. Tim Duggan:

Yes.

Éamon Ó Cuív (Galway West, Fianna Fail)
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We have to think of cost this side as well because we have to vote the money through.

Mark Wall (Labour)
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The question has already been asked, but I wanted to ask Mr. Duggan again, because I am aware of cases over multiple years prior to 22 January this year. I want it confirmed again that they will get a payment from 22 January 2024 onwards. One case I am aware of has gone on for almost ten years since the partner passed away. Does Mr. Duggan see it happening in that case? Another question I asked of FLAC is about the definition of cohabiting couples. I know the civil partnership Act of 2010 has been mentioned. While welcoming that is the definition, what is the proof of such, in particular if we are to go back numerous years, that the Department will accept as proof of the five years people were together, or that they were together two years and had children? I would appreciate if Mr. Duggan could give some definition on that.

Mr. Tim Duggan:

Where somebody died prior to 22 January this year and there is eligibility under the rules as set out in this new legislation, then payment would start from 22 January this year. That is assuming they make an application and they do it within six months of the legislation being enacted. If they apply subsequent to that, the normal six-month backdating rule for all pensions would apply. The tests to decide if somebody is a qualified cohabitant or not are set out in the proposed legislation based on the same tests or criteria as are in the 2010 Act. They can involve all kinds of things, but we would try to establish the duration of the relationship, the basis on which the couple lived together, the degree of financial dependence between them, whether there are one or more dependent children of that relationship and so on. A full list is set out in the proposed heads. While we will seek information in that respect, we will also be practical in the sense that depending on the historical nature of the claim, it may not be possible to furnish absolutely everything that would ideally be required. There will obviously be a declaration required from people when they make an application for a scheme anyway. It will be a combination of those things. If necessary, as with all of our schemes, we will ask inspectors to examine things. However, as I said, we will always try to be as practical and sensible about the determination as we can, particularly where it is of a historical nature, and it might be more difficult to find or provide the information we ask for.

Éamon Ó Cuív (Galway West, Fianna Fail)
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What about adopted children?

Mr. Tim Duggan:

Does the Deputy mean-----

Éamon Ó Cuív (Galway West, Fianna Fail)
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The two years, yes.

Mr. Tim Duggan:

That is fine.

Éamon Ó Cuív (Galway West, Fianna Fail)
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What if they were adopted by a single person who then started cohabiting?

Mr. Tim Duggan:

Then they are not of that relationship, unless the second parent also adopts them.

Éamon Ó Cuív (Galway West, Fianna Fail)
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If they did, would they be considered?

Mr. Tim Duggan:

If they are adopted by both people in the cohabiting relationship, then they are children of that relationship.

Éamon Ó Cuív (Galway West, Fianna Fail)
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If they had children before they started cohabiting, are they still okay at two years?

Mr. Tim Duggan:

Yes, they are. I apologise, I was just making sure I understood what the Deputy was asking.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I probably did not put it clearly enough.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Yes, but they had the children five years ago.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Yes.

Mr. Tim Duggan:

That is absolutely fine.

Éamon Ó Cuív (Galway West, Fianna Fail)
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I was curious about why that distinction was made? It is based on another Act, but was there any rationale for the two and five years and not going for bust and saying two years in all cases? It would be quite simple. It is not relevant because it is handier for the Department to hang it on another Act but was there any reason the other Act had two and five years rather than just saying two years in all cases?

Mr. Tim Duggan:

As the Deputy said, it is handy for us to hang it on an existing Statute, because it is better understood in the sense that the representative groups use that Act and advise people, provide guidance and training and all those good things on the basis of that Act. The knowledge in the sector is based on that Act. To do something else would have introduced significant confusion and may have introduced legal anomalies that could be challenged. It therefore does not make sense for us to come up with a regime alternative to the one that is well ensconced.

Éamon Ó Cuív (Galway West, Fianna Fail)
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Yes, I was curious about why they came up with that regime. The officials do not know.