Bernard Durkan (Kildare North, Fine Gael)
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Question 59: To ask the Minister for Social and Family Affairs his plans to ensure eligibility for old age pension on foot of self employed contributions where both spouses or partners are directly involved in the running of a small or medium enterprise; and if he will make a statement on the matter. [15279/07]

Bernard Durkan (Kildare North, Fine Gael)
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Question 188: To ask the Minister for Social and Family Affairs the number of spouses of self employed people who do not qualify for an old age pension on foot of self employed contributions despite having jointly owned and run a business during their working life; his views on the discriminatory issue involved; if he proposes to make changes; and if he will make a statement on the matter. [15594/07]

Séamus Brennan (Dublin South, Fianna Fail)
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I propose to take Questions Nos. 59 and 188 together.

Under social welfare legislation, the social insurance status of spouses working in a family business can vary. Spouses and relatives who are engaged in a business partnership are treated as individual self-employed contributors who are liable to social insurance contributions. These contributions enable them to build up an insurance record in their own right and receive accruing benefits. Alternatively, where a family business is incorporated as a limited company, spouses and assisting relatives involved in the business pay PRSI contributions either as employees or as self-employed contributors depending on whether a contract of service exists.

Otherwise, a person employed directly by his/her spouse is not liable to pay PRSI, being "excepted" under social welfare. The exceptions apply to both men and women in family employments and recognise the practical difficulties in establishing the existence of a genuine employment relationship in such circumstances. Where formal employment relationships are intended between spouses or assisting relatives, the legislation provides the scope necessary, as outlined above, to allow parties enter into formal arrangements for a contract of employment or self-employment whereby PRSI contributions will be payable. Where a spouse has not built up personal entitlement to a contributory pension based on individual social insurance contributions, she or he may be entitled to an increase on their spouses pension as a qualified adult.

With regard to the question of whether this approach is discriminatory, I am satisfied at this stage that this is not so. An EU report referring to the Directive 86/613/EEC on the application of equal treatment between men and women recognises that it is a matter for individual Member-States to decide on the appropriate level of cover for assisting spouses.

The question of discrimination will be further considered in the context of a wide ranging review of the social welfare code. The review, which is currently underway, will seek to 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. The project is being carried out over two phases. Phase I, which involves a scoping exercise aimed at identifying appropriate approaches and methodologies to be undertaken, is now complete. The results from this exercise will form the basis of the Terms of Reference for the main review that is due to follow in Phase II. This is expected to commence in mid-2007.

With regard to number of people who do not qualify for a state pension contributory on the grounds of insufficient self-employment contributions as a co-helping spouse, the Department does not maintain data of this nature. In the meantime, I am satisfied that, under the existing social welfare provisions, where formal employment or partnership relationships are intended between spouses, the legislation provides the scope necessary to allow parties to enter into arrangements that will enable them to gain access to social insurance coverage and accrue entitlement to benefits and pensions accordingly.