Richard Bruton (Dublin North Central, Fine Gael)
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Question 143: To ask the Minister for Social and Family Affairs the position in regard to a maternity benefit claim of a person (details supplied) in Dublin 9 who has had years working at class A and then goes to work for their spouse; the position if they were partners who never married; and if this accords with obligations to not treat married person's less well. [4945/06]

Séamus Brennan (Dublin South, Fianna Fail)
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A claim for maternity benefit was received from the woman in question on 18 October 2005. Her expected date of confinement was certified as 22 December 2005, with her maternity leave due to commence on 5 December 2005. Details included on her application form indicated that she was working with her husband and that PRSI contributions had been paid in respect of that employment at PRSI Class A. As her husband was registered as a sole trader, the claim was referred for a decision to examine whether she was insurable under the Social Welfare Act and, if so, to establish the appropriate class of PRSI payable in respect of this employment. Following an examination of the case, a deciding officer concluded that the woman's employment was not insurable under the Social Welfare Acts, as it was an excepted employment. Her claim for maternity benefit was consequently disallowed.

The provision in the social welfare code whereby employment in the service of a husband or wife is excepted for social insurance coverage is a long-standing provision. It mirrors similar exclusions under employment protection legislation. The provision recognises the practical difficulties in establishing the nature of a genuine employment relationship in such circumstances. The ways in which spouses who work together in a family business could be covered for social insurance purposes can vary. Under current social welfare legislation provisions, there are three different scenarios to be considered. First, where spouses are actively engaged in a commercial enterprise as a business partnership, they are treated as individual self-employed contributors and are liable to social insurance contributions. These contributions enable them to build up an insurance record in their own right and to receive accruing benefits. This would apply equally to unmarried couples.

Second, where a family business is incorporated as a limited company, spouses involved in the business can establish a PRSI record either as employees or as self-employed contributors — depending on whether a contract of service exists or not. Again this is equally relevant to unmarried couples working together.

Third, a person employed under a contract of service, that is, as an employee, by his or her spouse is viewed as an "excepted" contributor under social welfare legislation. The exception applies to both men and women in family employments and recognises the practical difficulties in establishing the nature of a genuine contract of employment in such circumstances. Likewise, although not specifically excepted, it is questionable whether a person in a relationship with another for whom they are working and to who they are not married, would be considered to be in an employment under a contract of service.

Thus, where formal employment or partnership relationships are intended between spouses or assisting relatives, the legislation provides the scope necessary, as outlined above, to allow parties to enter into arrangements that will enable them to gain access to social insurance coverage.