John Paul O'Shea (Cork North-West, Fine Gael)
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No apologies have been received. Witnesses and members are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that would be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory in respect of an identified person or entity, they will be directed to discontinue their remarks. It is imperative that witnesses comply with any such directive I might make.

Members attending remotely are reminded of the constitutional requirement that to participate in the meeting, they must be physically present within the confines of the place where Parliament has chosen to sit. I ask any members participating via Microsoft Teams to confirm before contributing that they are on the grounds of the Leinster House complex.

I remind all in attendance to ensure their mobile telephones are switched off or in silent mode. Failure to do so may affect the transmission of proceedings.

The purpose of today's meeting is to engage in scrutiny, prior to Committee Stage, of the Social Welfare (Bereaved Partner's Pension) Bill 2025. From the Free Legal Advice Centres, FLAC, I welcome Ms Eilis Barry, chief executive, and Mr. Christopher Bowes, policy and public affairs manager. The committee welcomes the opportunity to engage with the witnesses. I acknowledge FLAC's contribution in advocating in respect of the legislation we are discussing. I invite Ms Barry to make her opening remarks.

Ms Eilis Barry:

FLAC is very grateful for the opportunity to address the joint committee as part of its consideration of the Social Welfare (Bereaved Partner's Pension) Bill 2025. As members know, it was intended that the Bill would give effect to the Supreme Court's decision in the O'Meara case. We represented John O'Meara and his children in their successful challenge to the legislation that excluded John from access to a widower's contributory pension following the tragic death of the children's mother, Michelle Batey, who was John's partner of more than two decades. The Supreme Court declared that the legislation, which provides for payments to bereaved families only in circumstances where the parents had been married or in a civil partnership, is unconstitutional by reference to the Constitution's guarantee of equality before the law. The Chief Justice found there is "no relevant constitutional distinction between children in a long-standing non-marital unit such as the O'Meara's and those of a comparable family whose parents were married".

The Bill will expand the entitlement to social welfare schemes aimed at bereaved partners and families to qualified cohabitants and their children. We very much welcome the Government's implementation of the O'Meara decision through this legislation. In particular, we welcome the inclusion of bereaved cohabitants who do not have children in the expanded scope of the relevant schemes. While not strictly required by the O’Meara judgment, it represents a compassionate and generous response to its findings. The Bill will have a significant positive impact for cohabiting couples and families who, like the O'Meara family, suffer a bereavement and the emotional and financial impact it inevitably entails.

Regrettably, the Bill also contains proposals to remove the current entitlement of people who are divorced or separated to a survivor's pension if their former partner dies. Such an entitlement has been in place for almost 20 years. It was introduced after the second divorce referendum in recognition that the death of a divorced or separated partner can bring about a financial loss for families who may have been reliant on maintenance from the deceased. I am old enough to remember the first divorce referendum, which was rejected on the grounds that it failed to properly provide for dependent adults and children. The Bill proposes to water down protections that were introduced subsequently to shore up the protection for those people.

We believe there are strong legal, policy and practical rationales for removing the proposals from the Bill to reduce the social welfare entitlements of divorced and separated people. With the greatest respect, we do not accept the various arguments put forward by the Minister for Social Protection and his Department that attempt to justify the changes proposed.

First, the changes are not required by the Supreme Court judgment in the O'Meara case and may, in fact, be inconsistent with that judgment. The reduction in the social welfare entitlements of a particularly vulnerable category of lone parents and their children, namely, those who were reliant on maintenance from a former partner who has died, is in no way required by the O'Meara judgment. Indeed, the proposed changes may be inconsistent with the equality and children's rights principles that underpin the landmark judgment. The Bill proposes to treat the children of separated or divorced parents less favourably than children whose parents are married, in a civil partnership or cohabiting. This is despite the fact that in the O'Meara judgment, the Chief Justice placed an emphasis on "the rights of all children, and obligations of their parents, irrespective of the status of their parents". The approach taken in the Bill seeks to achieve equality by levelling down existing levels of entitlement when it is entirely possible to take a more generous and equitable levelling-up approach by expanding entitlement to include divorced and separated cohabitants.

Second, the restrictive new conditions will impact on all future applicants for the payments. The proposed changes will mean all future applicants for a survivor’s pension will be required to prove to the Department of Social Protection that they were living with their partner in an intimate and committed relationship in the two years before that partner's death, even where they were married and living in the same house. There is no similar requirement in other areas of social welfare law for married couples to establish that they have been in an intimate and committed relationship. At present, the existence of a marriage or civil partnership is sufficient to establish entitlement to a survivor's pension, subject to the other conditions being satisfied. The new rules require the potentially invasive examination of the nature of a couple's relationship and whether they were living together. This would occur following a bereavement, when respecting the surviving partner's right to privacy and dignity should be of tantamount concern.

Third, the numbers of separated and divorced people who require the payment are small. The Irish social welfare system has long been concerned to protect the particular needs of bereaved people and families and has made special provision for them.

Since the introduction of divorce in the mid-1990s, the social welfare system has provided a safety net for families where the surviving parent is separated or divorced but has not remarried or begun cohabiting with another person. This safety net is still needed now. Lone parents remain one of the groups most at risk of experiencing poverty and disadvantage and we know that most lone parents are women. Separated and divorced people make up a very small fraction of the number of people seeking widow's or widower's contributory pensions. The Department estimates that there are only approximately 100 newly divorced claimants for this payment each year.

It is a significant cause for concern that the Department does not seem to have conducted any human rights, equality or anti-poverty impact assessments concerning the proposals. This is despite the fact that the public sector human rights and equality duty puts a mandatory obligation on the Department to have regard for human rights, equality and anti-poverty concerns when it carries out any of its functions, including matters such as the Bill under consideration by this committee.

We have drafted a number of amendments to the Bill that we believe would address our concerns about the legislation and ensure that the relevant social welfare payments remain available to bereaved families where the parents were divorced or separated. These amendments, and the rationale behind them, are outlined in detail in our written submission, which we have provided to the joint committee.

With the amendments, we are trying to prevent the introduction of new inequalities for families of divorced or separated parents. We believe that our proposals will not arbitrarily exclude any children of any family based on a committed, stable relationship. It is an opportunity to ensure equal treatment of all children irrespective of the status of their parents. It will align the Bill with the Supreme Court judgment. There are only tiny numbers involved; there are no floodgates to fear. It would be a very fitting tribute to John, who at the very worst time in his life and that of his children had to show enormous courage and resilience and take on the might of the State to secure the rights of his children. Let us not introduce a new inequality and subject another family to what John and his family had to go through.

My colleague, Mr. Christopher Bowes, FLAC’s policy and public affairs manager who drafted the amendments, and I would be happy to answer any questions that members of the joint committee may have.

John Paul O'Shea (Cork North-West, Fine Gael)
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Go raibh maith agat Eilis for your opening statement. I will now invite members to discuss the matter. I remind members participating remotely to use the raised-hand feature and to cancel it when they have spoken. Deputy O'Reilly has asked to speak first because she has another commitment. Is that agreed? Agreed.

Louise O'Reilly (Dublin Fingal West, Sinn Fein)
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I apologise to our witnesses because I will have to leave to speak in the Dáil. If I leave, I can catch up afterwards with the transcript.

It is my intention to submit the amendments that have been given to us by FLAC for consideration. We will have a chance on Committee Stage to discuss them in detail and, I hope, discuss them with members of the Department. Like Ms Barry, I am old enough to remember the original divorce referendum and the phrase, "Hello Divorce ... Bye Bye Daddy". I do not think that going backwards is really a good option. This is very decent legislation. It is progressive and good but there is a tiny piece missing that we need to get right.

Ms Barry said that the numbers involved were tiny. Will she give us an estimate? We have been asking the Department and it seems to be a fraction of even the people who will qualify.

Mr. Christopher Bowes:

The main payment concerned is the contributory version of the widower's pension. At the moment, there are just under 130,000 people in receipt of that. According to figures we have seen in response to a parliamentary question that was answered by the Minister for Social Protection, there are usually approximately 3,000 people recorded as previously having been divorced who are in receipt of the payment. This figure had remained fairly stable over the most recent five years that the Department was able to provide figures for. This indicates that it is probably 2.5% of the people who are in receipt of a widower's or widow's pension. When representatives of the Department appeared before the committee last year to discuss the general scheme of this legislation, they indicated that there were only about 100 fresh applications from people who were divorced for a widower's or widow's pension each year. The figure remains stable and the number being added each year is quite small.

Louise O'Reilly (Dublin Fingal West, Sinn Fein)
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We are definitely not talking about opening up any floodgates, given that the numbers are so small. I appreciate that there are some difficulties in terms of the date of the judgment and people who would have qualified before, but I do not think it is anything we should not be able to get over. FLAC's amendments address these issues. In the event that the amendments are not successful and the Government votes them down, which I hope is not the case, has FLAC considered any other form of compensation for people who would otherwise not be captured? Would it be appropriate for the committee to discuss whether it would be in order for another form of payment, if the Department is unwilling to grant access to the pension? Would this be out of the question?

Mr. Christopher Bowes:

The Deputy is referring to two groups. For people who are divorced and separated and whose former partner died, they are best dealt with by allowing them to remain within the scheme itself. The ideal situation in that case would be those amendments. There is a possibility in that scenario that someone might be entitled to, for example, the one-parent family payment, but because this is a contributory scheme, it is less likely that he or she would be entitled. The best way forward for that group of people would be to keep them in the scheme through the amendments we are proposing.

The other group of people are those who may have an entitlement to the payment on the basis of cohabitation that arose before the O'Meara judgment and might may have since ceased. The way the legislation is framed provides that entitlement only arises from the date of the O'Meara judgment in January 2024. There would be no scope for the Minister to use the backdating provisions in the 2005 Act to make regulations that allow for backdating before that point. That is the way the legislation is framed. The committee may consider the pension entitlements of cohabitants that arose before the O'Meara judgment. People may have applied for the payment and been refused or more likely they were told they were not entitled and did not apply for it. Due to the way this legislation is framed, that would have to be dealt with through some sort of ex gratia scheme outside of the scope of the legislation. The way the legislation is framed at the moment provides that entitlement can only arise from the date of the judgment.

Louise O'Reilly (Dublin Fingal West, Sinn Fein)
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Is it the case that, for the majority group, the preference is that they would be encompassed by the scheme and that would make sense?

Mr. Christopher Bowes:

Exactly.

Louise O'Reilly (Dublin Fingal West, Sinn Fein)
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FLAC has pointed out in its submission that the group we are talking about here are, for obvious reasons, lone parents and, therefore, the group most likely to have children at risk of poverty. I hope that we as a committee can work to strengthen and improve the legislation. I intend to submit those amendments and we will have an opportunity at that stage to have that discussion. I thank Mr. Bowes and Ms Barry for all of their work.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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Regarding the restrictive new conditions that are being imposed by the legislation, is there a precedent for this in other legislation? Is it saying that parties should have exercised their conjugal rights? Is that how far it is going? I am really flabbergasted by that.

Mr. Christopher Bowes:

It is quite unusual. Usually within the social welfare legislation, a person is deemed to be married on the basis of his or her legal status as being married. That would be accepted and it is certainly the way the widower's pension has operated for more than 20 years now. This is an unusual condition that stipulates that, as well as being married, people have to prove that they are in an intimate and committed relationship. The members of the committee will be aware that, when a person applies for a social welfare payment, the obligation is on the claimant to establish that he or she meets the conditions. This legislation would effectively put in place a system whereby someone who has recently suffered a bereavement - even if he or she was married or living in the same house as the deceased partner - would have to establish to the Department that, in the two years before the partner died, they were living in an intimate and committed relationship.

There is scope in the legislation for the Minister to create exceptions. For example, where someone was in a hospital for an extended period, they could still be considered as living together for the purpose of the legislation. An exception is carved out in that regard but as a general rule, there will now be an obligation on not just people who are cohabitants but also those who are married or in a civil partnership to meet these requirements and establish that they were not separated but were living together in an intimate and committed relationship at the point of death of their partner to become entitled to this payment.

Catherine Ardagh (Dublin South Central, Fianna Fail)
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Is there anything in the Schedule to the legislation that gives guidance to the Department? It just seems bizarre.

Mr. Christopher Bowes:

The legislation allows for the Minister to introduce regulations that provide for how this will be assessed, but it is certainly a new form of investigation and adjudication for the Department to look at the relationship of married people to decide whether it is an intimate and committed relationship.

Pat Gallagher (Donegal, Fianna Fail)
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I thank the witnesses for their presentations on this very important issue of the bereaved partner's pension. Did I understand correctly that the witnesses said this only pertains to the contributory pension rather than the non-contributory? In the past, those who had become widows or widowers, as we knew it then, could apply for non-contributory pension schemes. Can someone in this situation who does not have the contributions apply for a non-contributory scheme?

Mr. Christopher Bowes:

There is a non-contributory version of the widow and widower's pension but only approximately 700 people are on this at any given time. It is a much smaller scheme in terms of take-up because it has been overtaken to a significant degree by the one-parent family payment. There are specific rules for entitlement of people who are widowed to the one-parent family payment. Anyone who has dependent children who come within the age range of those payments, for example, would be able to get an increase for a qualified child on the one-parent family payment, which they are not able to get on the non-contributory widow and widower's pension. For that reason, and for the most part when it comes to the non-contributory and social assistance side, people who have a bereavement of a spouse or civil partner will end up on the one-parent family payment rather than the non-contributory version of the widow and widower's pension scheme.

Pat Gallagher (Donegal, Fianna Fail)
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Would it make much of a financial difference if this were to include non-contributory? Has anyone been at a loss as a result of not being included in non-contributory schemes?

Mr. Christopher Bowes:

These amendments also apply to the non-contributory version of the scheme. This legislation will entitle people who are qualified cohabitants, if their qualified cohabitant dies, to the non-contributory version of the scheme. As I said, however, if dependent children are involved, the entitlement ends up being the one-parent family payment.

Pat Gallagher (Donegal, Fianna Fail)
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If no children are involved, it is the non-contributory element of the scheme.

Mr. Christopher Bowes:

Exactly.

Mark Wall (Kildare South, Labour)
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I welcome our guests. It is good to speak with them again after our previous conversation.

I have a couple of questions. I apologise for missing the start of the contributions. My first question may have been addressed earlier. How much communication or queries has FLAC had about this pension? We have all had queries, and I have had them from throughout the State. As a body, what kind of questions have been asked of FLAC and how many people have contacted FLAC on this?

I have had concern for a while surrounding who qualifies for this and who does not, which has been mentioned and gone through. I queried the Minister on an ex gratia payment and he said he would look at it. Obviously, it will have to be looked at by the Department. Does FLAC have any idea what that payment will look like or what it would like it to look like? How much should that payment be? Are we talking about a contributory pension? It is a concern for many people I deal with who are worried they may not qualify.

My final question relates to the regulations the Minister will have if this Bill passes. It is a very progressive Bill, as has been said, and it is welcome and timely. Again, we remember the O'Meara family, who have been involved in this. This question has arisen time and again, but does FLAC have any idea what "intimate and committed" means? In the regulations the Minister will bring forward subsequent to this Bill's passage, what would FLAC like to see as "intimate and committed" and are there timeframes or anything else FLAC would like to see involved there?

Mr. Christopher Bowes:

As I think we said the last time, we get regular queries on this. Every couple of weeks or so, we get something new into our telephone information referral line. The question that is currently coming in most often is when this legislation will be enacted. My sense is there is fairly good awareness of this. There should be some take-up scheme undertaken by the Department once these changes are brought in to ensure the new groups captured under the expanded scope of the schemes are made aware of their entitlement, particularly because there will be scope for backdating going back to the date of the O'Meara judgment. People may have significant entitlements to a backdated payment at the stage the legislation is enacted.

On the ex gratia scheme, there will be two groups of people. There will be those who became entitled before the date of the O'Meara judgment and the scheme will cover them from the date onwards but they may have had a period before the judgment took effect and, therefore, the scheme will also capture that period. There will also be people who became entitled at some point before the O'Meara judgment and are now no longer entitled for some reason. They may be cohabiting with or married to someone else so their entitlement may have ended. That could be someone who no longer has an ongoing entitlement but who had a period when they could have got the payment and effectively did not or, under O'Meara, would have got the payment but did not because it was not in place at that point.

On the shape of that scheme, we will need to look at whether people were able to access other social welfare payments during that time, whether they did access those payments, the number of qualified children and so on. I mentioned in my response to Deputy O'Reilly that if there was a scheme like that, it is important that we would not restrict it to people who had applied for the payment before the O'Meara judgment, even though they were not entitled. As we have said, most people who were cohabiting and lost their former qualified cohabitant partner would have been aware they were not entitled, so may not have applied or may have attempted to apply to the Department or the citizens information office. If they had contacted FLAC, we would have told them that, unfortunately, they were not entitled under the scheme at that point. It is important we would not restrict it in this way were a scheme like that to be put in place. The legislation as drafted only provides for entitlement after the date of the O'Meara judgment, so a scheme like that would have to take place on an administrative basis rather than under regulations relating to the 2005 Act.

On intimate and committed relationships, this concept arises in two ways in the 2025 Bill. First, it is for the purpose of establishing whether a person is a qualified cohabitant. In that context, it uses the same definition of qualified cohabitant as that in the 2010 civil partnership and cohabitation legislation. A pre-existing legal definition is already being applied by courts, so we have guidance and precedent for how this can be used. We believe this is a positive aspect of the 2025 Bill. It is assessed by reference to factors such as whether the couple were living together, for how long, whether there is financial interdependence and whether they own assets together. It is quite a high threshold for someone to be considered a qualified cohabitant. The intimate and committed relationship is just one factor.

The other side of where this concept arises in the 2025 Bill is for the purpose of establishing whether people who are married or are in a civil partnership, as Deputy Ardagh discussed earlier, are not separated but are in an intimate and committed relationship. When it arises in that context in the legislation, it is a lot more nebulous. It does not mirror the 2010 Act in the same way. It is all left up to ministerial regulations, which we do not have sight of yet. The amendments proposed by FLAC would remove this aspect of the scheme. This will not create a new entitlement for people who are married or are in a civil partnership and are divorced or separated. It just maintains the existing entitlement, which has been there since 1996. As far as we can see, it has given rise to no difficulties in administering the scheme. It has not made it unnecessarily complex and people have been able to access the payment.

We would very strongly push for the use of this idea of intimate and committed relationships insofar as married and civil partnerships are concerned. We would very strongly push our amendments to remove this new element of the scheme that is being proposed.

Noel O'Donovan (Fine Gael)
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I thank FLAC for being here this morning. Social protection legislation is quite complex and technical. I thank FLAC for its work on ensuring end users get the protections they need. I have just two quick queries. The first is on the nature of the presentation on the removal of the entitlement of divorced and separated people. In the first instance one could say that there may well be reasons for separation and divorce and continuation of funding. One can see why it may well not be. The point was made by witnesses about lone parents and maintenance payments that would have been available. Has the Department given any justification as to why this is in the legislation given that it was not requested in the O'Meara report? Ultimately, we will have the Department officials before us here do the witnesses have any view on that, or what has the Department been saying back to them?

My second question is on cohabitation, which is another complex area. There is legislation on property rights and all of that, which is thankfully in place. With regard to the social protection system and the State finances, and I accept that at the stage of bereavement there are emotive concerns at times, there have to be protections to prove cohabitation for two years prior to cohabitation. The witnesses mentioned that the Department will introduce guidelines on that. Has FLAC asked the Department what those guidelines may be at this stage? Would it be beneficial to see those guidelines being drafted as part of this legislation?

Mr. Christopher Bowes:

Ms Barry made clear in her presentation that we are quite strong in that we believe these changes are not required by the O'Meara judgment and in fact are inconsistent with it. We do not accept that. The Department has at various times put forward the idea that these changes are to bring the scheme in line with the O'Meara judgment to create greater consistency. The result of the changes it is proposing is that this would create a situation similar to the O'Meara case where one group of families, those where the parents were divorced and separated, are treated differently from cohabiting families, families where the parents were married and families with parents who are in a civil partnership. As the Chief Justice pointed out, no matter the status of the parents, their obligations to their children are still the same. That applies whether the parents are divorced or separated. We believe a situation is being created where another group of families is being arbitrarily excluded. We do not accept the idea being put forward that this is somehow consistent with the O'Meara judgment.

Another rationale being put forward for it by the Department-----

Noel O'Donovan (Fine Gael)
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Has FLAC this information in written correspondence from the Department?

Mr. Christopher Bowes:

Yes. This has come up in both their appearances before the previous iteration of this committee and in the Minister's statement when the legislation was introduced in the Dáil on Second Stage.

Noel O'Donovan (Fine Gael)
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Perhaps Mr. Bowes will share that with us.

Mr. Christopher Bowes:

We recap all of that in our submission as well. It is in section 2 of the submission, just at the start, but not the opening statement. It is contained in our full written submission.

Another idea put forward by the Department officials is that they do not want a scenario where a single death could give rise to two claims for a widow's or widower's pension. It has been the case for more than 20 years that if people die and they are married at the time of their death but they were previously married to someone else, and if their first spouse has not remarried or is not cohabiting with someone else, then that person could have an entitlement to a widow's or widower's pension similar to the spouse at the time of the death. There would be two entitlements but there is no indication that this has created any difficulties in administering the scheme. It seems quite arbitrary to pursue this policy whereby the Department is seeking to have a situation where death can only give rise to one claim.

Another issue that has been put forward-----

Noel O'Donovan (Fine Gael)
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Does FLAC have a view as to how we would stop that situation occurring where a previous partner and a current partner were recently bereaved? That is the Department's issue with this. Is there a view from FLAC as to how to get around that situation?

Mr. Christopher Bowes:

We would not take issue with it. It may well be that the former spouse might be reliant on maintenance from the person who died, and the children may have been reliant on that maintenance. The spouse at the time of death could also have been reliant on the person. We just view that as a scenario where the scheme is working as it is intended to work to address the gap that has arisen in entitlement or dependence on the person who has died, and in trying to address the need that has arisen as a result of the person's death.

Noel O'Donovan (Fine Gael)
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I am not saying that paying two previous partners should not be the case but understanding the reasons the Department may have issues with it would be beneficial for us. What number of families may be in that position at present? It would be beneficial if we could get those numbers.

Ms Eilis Barry:

We are meeting the Minister tomorrow. He has agreed to meet with us and he may be able to throw further light on his reasons for some of the amendments.

Johnny Guirke (Meath West, Sinn Fein)
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I thank Ms Barry and Mr. Bowes. I have a couple of questions although some may have been asked. How can the two-year cohabitation requirement for a partner to be a qualified cohabitant be justified? What evidence is there to suggest that this duration adequately reflects the emotional and financial independence that may exist in shorter relationships?

On the transition period, given that the Bill includes amendments that will affect existing pension recipients, what transitional arrangements will be made for individuals who were previously receiving benefits under the old system.

How does the Government plan to fund a bereaved partner's pension and the bereaved parent grant in the long term? What assurances can be provided that benefits will remain sustainable and not subject to cuts in the future? Will there be a regular review mechanism to assess the impact of this Bill on bereaved partners and families? How will the Government incorporate feedback from stakeholders and beneficiaries into future amendments or improvements to this legislation? The Bill is a good step forward.

Mr. Christopher Bowes:

That two-year time period is for families with children. It comes from the 2010 civil partnership and cohabitation legislation. This has been in place for a good while. I should point out that it is two years where there are children and five years where there and no children. This is the length of time used in the legislation for effectively establishing that people are in an intimate and committed relationship.

On the transition provisions, it is important to highlight that there are what we call "saver clauses" within the legislation. People who are divorced and separated who have been claiming the payment up to now, and up to the point until the 2025 Bill is enacted will maintain their entitlement. There will not be any further new claims from people who are divorced or separated. Those saver clauses would capture those people.

With regard to funding in the long term, as I mentioned in reply to Deputy Gallagher earlier, most people claiming these schemes come under the contributory side of the scheme. There is less take up of the non-contributory version. Most of the funding of it would be through the social insurance fund. This is my understanding of where the funding is coming from for the contributory version of this scheme.

I agree with the Deputy that the impact of these changes should be reviewed. Our hope is that the amendments will be accepted, existing entitlement will be maintained and separated cohabitants will be brought within the scope of the scheme. This is what our amendments are trying to achieve and instead of bringing it down, to level it up to include those separated cohabitants, and then maintain this existing entitlement that has been there for divorced and separated people. In her opening statement, Ms Barry pointed out that the Department needs to be looking at the potential impact of this now so they are subject to the public sector human rights and equality duty. This brings in a requirement to make sure they are trying to prevent any sort of extreme form of poverty, and that this would be encapsulated within that. We actually want the reviewing and the assessment done now by the Department to make sure that officials fully understand the potential impact of the changes they are proposing. Unfortunately, answers to a number of parliamentary questions that were submitted to the Minister for Social Protection indicate that those sort of assessments have not been undertaken to date. We are looking at engaging further with the Minister and the Department on this.

Johnny Guirke (Meath West, Sinn Fein)
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Will there be a public awareness campaign on this to make people aware of the changes?

Mr. Christopher Bowes:

Yes. When the Minister introduced the legislation on Report Stage he mentioned that the Department would seek to make cohabitants who are included in the expanded scope of the scheme aware of this new entitlement they will have under the 2025 Bill. Making sure that people are aware of their legal rights under the social welfare legislation and are able to avail of their entitlements is very important from an access to justice perspective.

William Aird (Laois, Fine Gael)
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I thank the witnesses for being here. I am encouraged by what I have heard. As a former long-serving county councillor, I thank them for their work and involvement with citizens information. They do an awful lot of good work in that regard. I know that from my years as a councillor. I am glad to have the opportunity to thank them very much for the work they do throughout the country.

I welcome the outcome of the O'Meara case. I have been reading into it. Most of the questions I was going to ask have been answered. From where does the requirement to prove you are in a relationship come? Is it from civil servants? Is that where it originated? Are they afraid that something in the Bill is going to cost the State an awful lot more money? It beggars belief that people are being asked to prove something in order to qualify. That makes matters very complicated. As a county councillor over the years, I helped people in circumstances such as these in the context of filling out forms. This is another layer, which is difficult. Are these requirements coming from civil servants? These are the questions I would have loved to ask in all the time I was a councillor, and now I have the opportunity to ask them as a TD. Is this coming from civil servants and are they asking for a reason? Who is flagging this? It certainly did not come about as a result of a Minister seeing something and asking for a change. I need some clarity on that point.

All of the other questions I wanted to ask have already been answered. It is encouraging that the O'Meara family did what they did. To prove a point, the matter had to go in direction it did in order for us to be here today discussing it. Perhaps the witnesses would answer my question.

Mr. Christopher Bowes:

We very much agree that this is going to introduce new complexity to the legislation, which could result in delays and appeals. It could create a barrier to accessing the payment because people must establish that they meet the new criterion for access, which is that they are in an intimate and committed relationship with their husband or wife, or were at the time of his or her death. Our amendments would remove this proposal from the legislation and restore how the legislation has worked over decades, which is that to prove you are married, you must simply demonstrate that you are legally married, which is a more straightforward approach. I do not think there is anything to suggest that has not worked well for as long as the scheme has been in existence.

Insofar as where the proposal came from, there is potential here of an overcorrection in light of the O'Meara judgment. As we mentioned, cohabitants will have to establish that they are qualified cohabitants under the definition used in the 2015 legislation. Part of that is establishing that you are in an intimate and committed relationship by reference to other factors, such as the length of the relationship, as we mentioned, and financial interdependence. The issue arising here is that people who are married or in a civil partnership are also being asked to establish they are in an intimate and committed relationship. Looked at one way, that is equality of treatment, but it is an overcorrection. There is a reason that qualified cohabitants must establish they meet those criteria, which is that they cannot show they are married or in a civil partnership by reference to paper records in the same way that people who are married or in civil partnerships can. In our view, it is not necessary at all. It is effectively creating more restrictive conditions for accessing the payment and, as the Deputy said, bureaucratic barriers to accessing it. The situation is difficult. We do not accept in any way that this comes from the O'Meara judgment. Our view is that it should be removed from the legislation, and we have proposed amendments to do that.

William Aird (Laois, Fine Gael)
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May I ask one further question? I know it was sort of asked already but I want to make it clear in my own head. Consider a single parent who has been getting maintenance all his or her life. When the person from whom they have been getting maintenance dies, what is the situation?

Mr. Christopher Bowes:

It depends on the relationship with the person who has died. Under the existing legislation, if they were married or in a civil partnership, still are in such a partnership and have separated, or were previously in such a relationship, as long as that lone parent has not remarried, entered a new partnership or begun cohabiting with someone else, when their former partner dies, they become entitled to a widow's or widower's pension. That entitlement, which is under the current legislation, would be removed by the 2025 Bill. People who are divorced and separated from a former partner who has since died would no longer be entitled to the payment. That is the issue we are highlighting.

William Aird (Laois, Fine Gael)
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They would no longer, under this Bill, be entitled to the payment.

Mr. Christopher Bowes:

That is correct. Under the current legislation, cohabitants are not covered. If they had never been married or in a civil partnership but had been qualified cohabitants, they would not, under the current legislation, have an entitlement in the same way as someone who was previously married or in a civil partnership.

Sarah O'Reilly (Aontú)
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I thank Ms Barry and Mr. Bowes for coming. They are very welcome. I say "Well done" on the O'Meara case.

I have the same questions as everyone else. On the attempts to remove the pension entitlements from divorced and separated people, what was the rationale in the proposed legislation? Was there any legal basis to it? Is there legislation similar to this in other European countries?

My second question relates to the proof that you are in an intimate relationship. What level of proof is required? What are they looking for in those cases? What constitutes proof?

There is a matter that nobody else has brought up and that is not covered by the Bill. There is an anomaly in situations where a widow is working and receiving the pension of her deceased partner. If that widow falls ill, she cannot claim illness benefit. That affects some women, especially young widows. I understand the double jeopardy rule but the contributory pension is the result of the deceased spouse's PRSI. The widow who is working and falls ill should be able to claim for illness from their own PRSI. Do the witnesses have any thoughts on that? Have they come across such a situation?

Mr. Christopher Bowes:

I will start with the Deputy's question about the rationale for the changes in the 2025 Bill. We touched on a few of them already. I highlight that one rationale which has been raised is that there is an attempt to achieve equality. Because divorced and separated people have the entitlement at the moment, the intention is to add cohabitants. However, the Bill is not adding separated cohabitants. The suggestion is that if separated cohabitants are not added, there is an equality between separated cohabitants and divorced and separated people who are married or in civil partnerships. Our response to that is to put in separated cohabitants. It would not be as complex to adjudicate as one might expect because the threshold is so high to establish that one is a qualified cohabitant and there is a system for assessing it. We think it would be possible to introduce that.

On legislation around widow's and widower's pensions in other European countries, and their approach to cohabitation, we might have to come back to the Senator.

Sarah O'Reilly (Aontú)
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Okay.

Mr. Christopher Bowes:

I know that different approaches are taken in different jurisdictions. We might come back to the Senator on how those things operate in other places.

The illness benefit point is a good one, and we have received queries in that regard to our telephone information and referral line. Senator Rabbitte raised the matter with the Minister last week, and there is an issue.

As Senator O’Reilly said, there is a general rule against a person claiming two social welfare payments at the same time.

The issue regarding illness benefit could be resolved through regulation. The Minister has the power to make exceptions to the general rule with regard to double entitlement and the preference that people get only one payment. The issue that arises regarding illness benefit is that when someone is in receipt a widower's or widow's contributory pension, he or she is able to work and can therefore have two forms of income. However, someone who may be sick or disabled, who may also be entitled to illness benefit is not entitled to the two forms of social welfare income. There is a differentiation in treatment, which raises issues from a disability rights and equality perspective.

The rules, legislation and regulations regarding double entitlement are extremely complex. They have been amended heavily over time and the schemes have been consolidated. A piece of work should be done to review the rules on double entitlement to make sure they are consistent and coherent in how people are being treated. They have developed a lot over time. When that happens, there can be irrationalities and inconsistencies in how people are treated. In addition to looking at regulations, that whole area of overlapping entitlements should be reviewed.

The rules, legislation and regulations regarding double entitlement are extremely complex. They have been amended heavily over time and the schemes have been consolidated. A piece of work should be done to review these rules on double entitlement to make sure they are consistent and coherent in terms of how people are being treated. They have developed a lot over time. When that happens, there can be irrationalities and inconsistencies in how people are treated. In addition to looking at regulations, that whole area of overlapping entitlements should be reviewed.

Anne Rabbitte (Fianna Fail)
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I apologise for being late. I do not see it as a double entitlement. First, as Senator O'Reilly and Mr. Bowes have rightly said in their remarks, a lot of the people who pass away already have contributory entitlements. The widow or widower is actually only claiming off his or her late spouse's entitlement. If a person becomes ill, he or she becomes ill in his or her own right. That is what a person is contributing to in his or her own right. It is not a double entitlement; there has been a loss. The compensation of the loss is covered within the PRSI contribution as a person has contributed all his or her life. A working person is contributing to his or her own entitlement for illness benefit in the event he or she gets sick. It is not a double entitlement at all. They are two separate entitlements to which both persons have contributed in their lifetime while working.

Sarah O'Reilly (Aontú)
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I raise the proof required to prove someone is in an intimate relationship. Do the witnesses know what that entails? I have no idea. What is it that the Department is looking for?

Mr. Christopher Bowes:

Insofar as it relates to people who are married or in a civil partnership, it is less clear what the Department is looking for in that scenario because the factors are not set out in the legislation in the same way as they are for cohabitants, but there is a commitment to introduce regulations in that area. I think Deputy Aird mentioned that it would be useful to see those draft regulations as soon as possible.

The regulation for qualified cohabitants is more straightforward than the Senator might think. It is usually based on the length of time lived together, whether there are children in the relationship, financial interdependence in the relationship and shared assets. It is possible and has been done for quite a while under the 2010 cohabitation and civil partnership legislation.

John Paul O'Shea (Cork North-West, Fine Gael)
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There is an overall welcome for this Bill in the House across all parties. It is something that should be welcomed. I thank Ms Barry and Mr. Bowes for their contributions today and for their proposed amendments to the Bill. It is important that members go through the amendments. We got a fair understanding today of some of the amendments that have been put forward for very good reasons. There are significant complexities associated with a few of them and they have to be teased out more. It is good that they will meet the Minister tomorrow and that there is direct engagement with FLAC.

I give them a particular thanks to them for bringing this forward and for helping John O'Meara and the O'Meara family. I acknowledge that family as a committee because this Bill would not be before us if not for John O'Meara and the O'Meara family.

We have discussed the 2010 qualifying criteria for cohabitants a lot today. Do the witnesses think that legislation or regulation is still to the fore? Could it be updated in terms of those obligations? I assume the Bill will pass at some stage because there is overall support for it, whether the amendments are included. Whenever this Bill is passed, a public awareness campaign should be undertaken to encompass everybody who should have been included in it from the date of the judgment. That would be very important. People who would have applied but were told not to as they did not qualify would be in a position to apply retrospectively. In some cases, people may have received some other social welfare support during that time, which will have to be considered. There needs to be some level of individual circumstances applied as part of this whole application process. Will the witnesses comment on this in terms of the qualifying criteria for the 2010 Act? Are they still happy with how that is reviewed and looked at? Do they have any further comments?

Mr. Christopher Bowes:

The system under the 2010 legislation provides that people who meet the threshold of being qualified cohabitants can, after the end of the relationship, apply for maintenance and for provision out of the estate of a deceased qualified cohabitant. It is not the same sort of obligation that a person would have to a spouse if he or she were married or in a civil partnership. It is a lower level of entitlement, but it does address a gap that is there.

There are two elements to that legislation, namely, the definition of "qualified cohabitant" and the entitlement people have when they meet the threshold of being a qualified cohabitant. The 2025 Bill complements the provisions in the 2010 legislation because it is an add-on. It is not just an entitlement of one party to another. The social welfare system then steps in and provides for people who meet the threshold of qualified cohabitant. If we were to look at how the 2010 Act is functioning, there are two areas to look at. The first is the definition, of which I certainly have not seen any criticism that people are not able to establish that they meet that threshold. It is quite accessible and people are able to provide the proof. It seems they do meet that threshold. The other area is the level of entitlement or obligation that arises when people satisfy that they meet the definition of "qualified cohabitant". That is something that would be trickier to review, but 15 years on it is worth re-examining.

We agree with the Cathaoirleach's point about a take-up scheme. Our hope is, as the 2010 legislation seems to function fairly well in terms of proving cohabitation, that the 2025 Act will function in a similar way and that people who are qualified cohabitants will be able to establish that they will be entitled to what will be called the "bereaved partner's pension".

Ms Eilis Barry:

The Scottish social welfare legislation places an obligation on its Department of social protection to carry out benefit take-up campaigns with regard to all payments. That is something that should be incorporated into Irish legislation, not just in this regard, but to make sure that people are getting what they are entitled to.

John Paul O'Shea (Cork North-West, Fine Gael)
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Regarding a date, the legislation allows for payments to be backdated to the date of whenever the judgment was made. Do the FLAC representatives think that this date is satisfactory? Would they like an alternative date?

Mr. Christopher Bowes:

That is the date set out in the judgment. As a matter of the requirements of the judgment, legally that date complies with the judgment. The Government is therefore entitled to set it there. Deputy Wall and organisations such as Treoir have brought up that people have been excluded in the past but because the O'Meara judgment was not in place at that time, it meant the definition of "qualified cohabitant" and "provision" were not in the legislation. The legislation does not provide for those people prior to the date of the O'Meara judgment in January 2024. It is something that is definitely worth examining from the Minister's perspective. As we said, the way the legislation is structured at the moment, it would look to us as if it would have to be dealt with through some sort of administrative scheme. I suppose it would be helpful if there were some clarity on what the Department's approach to that whole area will be as the legislation progresses.

John Paul O'Shea (Cork North-West, Fine Gael)
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As there are no further questions from members, I thank Ms Barry and Mr. Bowes for contributing to the meeting. We are grateful that they provided their briefing materials in advance of our discussion, which assisted the committee in its deliberations. We will suspend until 11 a.m. to facilitate the exchange of witnesses.