Pádraic McCormack (Galway West, Fine Gael)
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Question 339: To ask the Minister for Social and Family Affairs his views on whether the Social Welfare (Consolidation) Act, 2005 Paragraph 1, Part 2 discriminates against a married woman where she is working with her husband who is a sole trader and in that situation is unable to pay the relevant PRSI contribution required to qualify her for maternity benefit while if she was single and living with the sole trader but not married to him, she would be eligible to pay the relevant contribution and qualify for maternity benefit; if this clearly discriminates against a married woman in this case; and if he will make a statement on the matter. [13553/07]

Séamus Brennan (Dublin South, Fianna Fail)
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Under social welfare legislation, three diverse scenarios could apply to a couple working together with different consequences arising. Firstly, where spouses are actively engaged in a commercial activity as a business partnership, they are treated as individual self-employed contributors and are liable to social insurance contributions at PRSI Class S — providing that income is above the annual threshold of €3,174. These contributions enable them to build up an insurance record in their own right and to receive accruing benefits — including Maternity Benefit. This would apply equally to unmarried couples.

Secondly, where a 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.

Thirdly, where a person provides help and assistance to a spouse under a contract of service, i.e. as an employee, or in a contract for services i.e. as a self-employed person, the co-helping 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 existence of a genuine contract in such circumstances.

The PRSI exception from liability where a spouse is working with the other is a longstanding provision and mirrors similar exclusions under employment protection legislation.

With regard to whether these provisions are discriminatory, this issue will be considered in the context of a wide ranging review of the social welfare code which is currently under way and which will examine the compatibility of the code with the Equal Status Act, 2000 (as amended), and to identify any instances of direct or indirect discrimination on any of the nine grounds identified in that Act — including marital status. In instances where differences in treatment are identified, the review will examine whether they are justified by legitimate social policy objectives.