Dara Calleary (Mayo, Fianna Fail)

As Senators know, in January 2024 the Supreme Court overturned the Department’s decision not to pay the widower’s contributory pension to Mr. Johnny O’Meara. At the outset of this debate, and as I have done constantly throughout all of the debates, I want to acknowledge the tremendous loss that Johnny O’Meara and his family have suffered. Johnny’s long-term partner and the mother of his three children, Michelle, died in January 2021.

In bringing this legislation forward, I had the privilege of meeting Johnny with Deputy Alan Kelly and heard his story first hand. I was hugely impressed by Johnny’s quiet determination and his courage and strength to see this case through all the way to the Supreme Court. Johnny and his children know that this very important change will benefit many other people and will be a testimony to Michelle’s memory. I am pleased, therefore, to be able to bring this Bill before Seanad Éireann, which represents the necessary legislative response to implement the Supreme Court decision. This Bill will now expand eligibility for the pension to surviving qualified cohabitants when their partner dies. The Supreme Court found that section 124 of the Social Welfare Consolidation Act 2005 was inconsistent with the Constitution in that it excluded a cohabitant like Johnny O’Meara from the payment because he was not a married or surviving civil partner. This legislation will have a very important impact for hundreds of people directly affected by the death of a loved one. It should also bring comfort to thousands of families and couples who may some day find themselves in that awful position where a loved one dies and they seek access to a pension from the Department.

As we all know, death does not distinguish on any grounds and the loss of a loved one affects all equally. In its decision, the Supreme Court noted that the State had already defined cohabitation within the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Accordingly, the Bill proposes to extend eligibility to the payment to qualified cohabitants who are in an intimate and committed relationship for a period of two years where there is a child or children of the relationship, or five years if otherwise. This reflects the definition in the 2010 Act for qualifying cohabitants.

Amendments were proposed in the Dáil to modify these rules in certain circumstances. However, it is important that the provisions relied upon in this Bill are consistent with the existing legal framework for cohabiting relationships. Any changes that may be necessary are better pursued through the 2010 Act and I am writing to the Minister for Justice to make him aware of the issues that were highlighted.

Expanding eligibility for the payment to surviving cohabitants requires several other relevant changes to the Social Welfare Consolidation Act 2005 and the Bill provides for these. The name of the scheme will change to the bereaved partner’s contributory pension which reflects the more inclusive nature of the payment for all bereaved partners whether spouses, civil partners or qualifying cohabitants. There will be no time restrictions on when the bereavement of the qualified cohabitant occurred, provided the rules continue to be met. Payments will commence from 22 January 2024 or later if the death is after this date. This is in line with established legal rules regarding findings of unconstitutionality. The rules on when entitlement to the payment will permanently cease are amended to remove entitlement where couples are divorced, enter into a new relationship of qualified cohabitation, or two years after the end of the relationship, whether that relationship is based on marriage or cohabitation. This is to address existing anomalies in the scheme cited by the Supreme Court and to avoid the situation where surviving cohabitants are again treated differently to separated or divorced couples. The Bill includes provisions that anyone, including divorcees, currently in receipt of a payment will retain their payment. The same rules for eligibility for cohabitants will be applied to the other schemes such as the non-contributory version of the pension, and the widowed or surviving civil partner grant. Those schemes will be renamed, again to reflect the more inclusive nature of the payment.

Part 3 of the Bill provides for certain other amendments to the 2005 Act and Family Court Act 2024, which I will set out shortly. I wish to address a number of issues that were raised in the Dáil debates which may arise here. First is the argument that the payment of a bereaved partner’s contributory pension should be paid for all children, irrespective of the martial status of their parents. This was not a finding of the Supreme Court. The effect of this argument is that a child of any relationship, irrespective of the duration of that relationship or its status would result in the surviving parent being eligible for a bereaved partner’s pension. In this context, it is important to note that the focus of the O’Meara Case was in relation to the treatment of the loss of a parent with children in a long-standing, non-marital unit and those of a comparable family whose parents were married. Access to the payment by divorced persons, whose marriages were dissolved was identified as an anomaly by the court and one which meant the distinction between the O’Mearas, and a comparable family based on a marriage, was not reasonable.

A second, and related issue that has arisen is that in the absence of payment of a bereaved partner’s contributory pension, a person who has lost the support of a separated or divorced partner will be left financially exposed, especially where there are children of that former relationship. The provisions being introduced are a consequence of the Supreme Court judgment to avoid further inequalities. The Supreme Court did not make a general finding that the payment of a widower’s pension was in respect of children. In fact, the court noted that the payment was not a payment for children. The Chief Justice stated:

Furthermore, WCP is increased when there are dependent children, and quite substantially. This is not in any sense to suggest that, as a matter of law, WCP is a payment to or for the children. It is an established principle in the field of social welfare more generally that the payment is made to the beneficiary and only them, and may be used by them for any purpose.

My Department will provide support through social welfare assistance payments where there is a financial need. Existing family law provisions are designed to provide for these cases specifically and contain measures that apply on the formal breakdown of a relationship and subsequently to seek recourse from the estate of the deceased. This also extends to surviving qualified cohabitants under the 2010 Act.

I will now provide a quick overview of the Bill. Section 1 provides for the Short Title, construction and commencement.Section 2 provides for the definition of the 2005 Act as the principal Act. Section 3 provides for the insertion of two new definitions into section 2 of the 2005 Act, namely "qualified cohabitant" and "surviving qualified cohabitant".

Section 4 provides for amendments to section 81 of the 2005 Act in order to allow surviving qualified cohabitants to access the death benefit payment under the occupational injuries scheme.

Section 5 provides for the substitution of section 123 of the 2005 Act. This section provides for renaming the scheme from the widow's, widower's and surviving civil partner's (contributory) pension to the bereaved partner's (contributory) pension. It introduces new definitions for "bereaved partner" and "deceased partner".

This section also amends the existing definitions of "widow", "widower" and "civil partner" to remove a person who is divorced or had their marriage or civil partnership dissolved. The section also sets out where a spouse or civil partner whose relationship has broken down for more than two years shall not be considered a bereaved partner for the purposes of the Act.

Finally, the section also contains a regulation-making power for those circumstances where the Minister of the day can deem that a spouse or civil partner are living together such as where one of them is resident in a nursing home.

Section 6 inserts a new section 123A into the 2005 Act to provide for the definition of a "qualified cohabitant". As I have said, this definition is similar to that of a qualifying cohabitant as defined in the 2010 Act. That Act provides an existing framework for establishing the existence of cohabiting relationships of a particular form that provide rights and obligations to those cohabitants. A person can become a qualified cohabitant where they were in an intimate and committed relationship of two years, where there were children of that relationship; or five years, where there were no children of that relationship. The section also sets out the circumstances that may be considered to establish the existence of a relationship of qualified cohabitation, which is based on similar criteria in the 2010 Act, and includes matters such as financial dependence and the extent to which they presented as a couple. This section also sets out a regulation-making power to allow the Minister to prescribe the evidence that will be required to prove the existence of such a relationship.

Section 7 repeals section 124 of the 2005 Act, insofar as it is still in operation, to reflect the finding of inconsistency with the Constitution by the Supreme Court.

Section 8 inserts a new section 124A to replace the repealed section 124 of the 2005 Act. The new section includes amendments to introduce the definition of "bereaved partner" and "deceased partner". It also sets out that a bereaved partner whose claim is based on being a surviving qualified cohabitant shall, regardless of the date of death of his or her deceased partner, be entitled to a pension under this section from 22 January 2024 or the date of death if it occurred after this date. This is an important aspect of the legislation in that it allows for the backdating of payments to the date that the provision was found to be inconsistent with the Constitution. Regulations under the 2005 Act will modify the existing six-month period for the backdating of claims and provide that claimants for this pension will have six months from the date of enactment to make a claim, which will be backdated to 22 January 2024 or the date of death, if later.

Section 9 provides for saver clauses to ensure persons who are currently in receipt of a payment under this scheme or who have an entitlement to the payment up to the day of the passing of the Bill will retain the payment or entitlement after the passing of the Bill. This applies to people who were bereaved and were divorced, or whose marriage broke down or civil partnership was dissolved before enactment of the Bill.

Section 10 provides for the substitution of section 125(1) of the 2005 Act which sets out the social insurance contributions for the pension. The new subsection includes amendments to introduce the definition of "bereaved partner" and "deceased partner" for the purposes of setting the contribution conditions.

Section 11 provides for the substitution of Chapter 21 of the 2005 Act, which provides for the widowed parent grant. The substitution of the Chapter includes amendments to the current widowed parent grant scheme in order to allow for surviving qualified cohabitants to access the scheme. This section also provides for changing the name of the scheme to the bereaved parent grant. These changes become effective from the date of enactment.

The remaining sections all relate to a technical definition. I am very conscious that the technical nature of many aspects of the Bill should not take away from the understanding of what people are going through and the impact of grief.

The Bill has been developed to ensure that the principle of equality in the treatment of potential beneficiaries is upheld both in relation to eligibility for the payment and the rules on the loss of entitlement when a relationship ends. I commend the Bill to the Seanad. I look forward to hearing the contributions of Senators.