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.