Joe O'Toole (Independent)

I thank the Cathaoirleach for allowing me to raise this matter and I thank the Minister of State for dealing with it. It is not the responsibility of the Department of Enterprise, Trade and Employment but the Minister of State is an accountant and it was an accountant who brought this to my attention.

Why is a married person working for his or her spouse who is a sole trader, in the context of equity, fairness and equity, not allowed to claim social welfare benefits, including maternity benefit, disability benefit and the State contributory pension? This is invidious discrimination that is unacceptable and there would be a strong argument for taking a constitutional case on the issue. It arises with sole traders, including accountants, farmers, shopkeepers and other professional people, who in order to run their businesses have spouses working with them. I am talking about people who do a day's work, clock in in the morning in a recorded fashion, finish in the afternoon, take the holidays to which they are entitled and pay PRSI. When these people come to claim social welfare benefits, the most obvious examples being maternity benefit or superannuation — contributory State pension — they are advised they have no such entitlement. The only reason for non-entitlement is their marriage to their employer. I had thought we had outgrown such provisions years ago. We have discussed progressive matters such as civil partnerships and various other relationships.

I will ask the Minister of State to come back to me on this matter. For example, from my reading a woman working for her accountant husband and paying her PRSI each week could find she is not entitled to any claim on it. If they were to get technically divorced in the morning and continued the same arrangement, would she then be entitled to claim full social welfare benefits? Let us consider another example. A woman might be working for a man in a normal employer-employee relationship. They might fall in love and continue the exact same arrangement with the woman paying class A PRSI contributions. Suddenly she would lose all her benefits, which is utterly unacceptable in this day and age.

A strong argument could be made for taking a constitutional case. I do not believe the answer the Minister of State will give will reassure me — I suspect I could have written it myself. I believe this case needs to be taken. I have sought legal advice on the issue. For the layperson, Kelly's Irish Constitution updated by Gerard Hogan and Gerry Whyte is very clear. My reading is that under Article 40.1 of the Constitution, which requires us all to be treated equally before the law, it is invidious discrimination to do this. It has a wide impact. It impacts on farmers, accountants, shopkeepers, architects etc. Something is fundamentally wrong.

The provision exists because people believe that a wife may not really be working for her husband and is simply perverting the system. I do not suggest we should allow ourselves be duped by people who do not deal with this matter on an honest basis. However, the two cases I have looked at relate to people who clock in in the morning, work the full year, take holidays only when the office is closed and work as long as their bosses. I would appreciate hearing the view of the Minister of State before he even reads the script. In fact he should throw away the script and give me his own thoughts. If he worked in such a situation, would he not regard it as being utterly wrong? If I were to launch a constitutional case on this matter would the State be of a mind to fight it or would it simply recognise the reality and come to an honest agreement that people working and paying PRSI are entitled to their social welfare benefits?

I always say to people that if they can get money easily from the Department of Finance they should not take it and should ask a second question. People get back only two kinds of payment by return of post from the Department of Finance. People seeking return of their pension contributions are paid immediately because it does not want to pay people a pension. The other is this one. A person who informs the Department that she has been working for her husband for 35 years paying class A PRSI and asks for her entitlements will receive a letter advising that she is not entitled to it but informing her that she will be sent all her payments and a little bit more in the post the following day. This is the reason I know it is wrong.