Paul Gogarty (Dublin Mid West, Independent) | Oireachtas source

This Bill, in essence, seeks to amend and extend the Social Welfare Acts, make consequential amendments to the Taxes Consolidation Act and provide for related matters. As noted by other Members in this discussion and in committee, the Bill will give effect to the Supreme Court decision in the O'Meara case by expanding entitlement to social welfare schemes aimed at bereaved partners and families to qualified cohabitants and their children by enabling them, for example, to access the deceased partner's pension. While the Bill is, of course, hugely welcome - everyone has welcomed it - it is clear that it should not have come to this stage. What John O'Meara and his children had to suffer after already grieving the death of Michelle was callous in the extreme in terms of the way the State dragged the matter out to the nth degree. Thankfully, the courts recognised that treatment was unconstitutional.

I echo the sentiments of colleagues regarding back payments. Even in terms of going forward, amendments are required to the Bill before it is ready to be enacted as workable legislation. I recall that the Free Legal Advice Centres, FLAC, mentioned some of the potential challenges during pre-legislative scrutiny. I wonder why proposals made in the context of the draft legislation are not reflected in the Bill that has come before us. According to FLAC, while the Bill extends the entitlement to social welfare schemes to bereaved partners, qualified dependents and children, there seems to be a levelling down of entitlements when it comes to specific categories of bereaved families. Families that have experienced a divorce or separation are prevented from accessing these social welfare payments following a bereavement. At the moment, 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 the surviving partner has not remarried and is not cohabiting with someone else. As I understand it, this Bill removes that entitlement. The Law Society Gazette notes in an article today the following statement from FLAC:

The O'Meara decision was based on the principle that a family that suffers a financial loss as the result of the death of a parent should not be arbitrarily excluded from access to a survivor's pension. The legislation giving effect to that decision should not create a new category of children who cannot benefit from such payments on the basis of the marital status of their parents.

The death of an ex-partner can still bring about a financial loss for families as a result of the loss of maintenance payments on death, as separated or divorced spouses have an obligation to maintain their children and may also have an obligation in some circumstances to maintain each other. This legislation is directly connected to the referendum a number of years back in regard to the O'Meara case. In essence, existing circumstantial rights of children and surviving partners to access the bereaved partner's pension would be taken away with the introduction of the Bill. An amendment to include this right should be made. That intent has been clearly stated by Opposition Members and, indeed, some Government party Members. I hope we will see some movement in that respect.

In terms of any obligation on the State, what is dealt with in this Bill is not what one would call a massive social welfare payment for the claimants who will seek it. The research I have done suggests there are only approximately 100 divorced claimants each year of the widow's or widower's contributory pension. That is from Houses of the Oireachtas supplemental data concerning the general scheme of the Bill. To ensure strict compliance with the O'Meara judgment, and the spirit of it, entitlement to the bereaved partner's pension should be expanded to cover divorced and separated partners who have not remarried or entered a new cohabiting relationship and are financially dependent on the deceased ex-partner in respect of their children. We should recommend to the Oireachtas social protection committee that this Bill be amended to ensure that the current definitions, which include those relating to certain categories of divorced and separated people, are not removed and that the new definition of qualified cohabitants is expanded to include certain separated qualified cohabitants. These changes are not going to cost a huge amount. They might prevent future cases being taken. It is a bit of a no-brainer unless the advice given to the Minister or to other members of the Government is that the change in itself is unconstitutional. If legal experts say it needs to be done and can be done, it should be done.

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