John O'Meara and Others v The Minister for Social Protection, Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Gerard Hogan,Mr Justice O'Donnell,Mr. Justice Woulfe
• Judgment Date: 22 January 2024
• Neutral Citation: [2024] IESC 1
• Docket Number: S: AP:IE: 2022:000139

Between/

John O'Meara, Jack O'Meara (A Minor Suing by His Father and Next Friend John O'Meara) Thomas O'Meara (A Minor Suing by His Father and Next Friend John O'Meara) and Aoife O'Meara (A Minor Suing by His Father and Next Friend John O'Meara)

Applicants/Appellants

and

Minister for Social Protection, Ireland and The Attorney General

Respondents/Respondents

[2024] IESC 1

O'Donnell C.J.

Dunne J.

O'Malley J.

Woulfe J.

Hogan J.

Murray J.

Collins J.

S: AP:IE: 2022:000139

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Right to equality – Article 40.1 of the Constitution – Social Welfare Consolidation Act 2005 s. 124 – Appellants challenging the validity of s. 124 of the Social Welfare Consolidation Act 2005 – Whether s. 124 of the Social Welfare Consolidation Act 2005 is repugnant to the Constitution

Facts: The first appellant, Mr O’Meara, made an application for Widow’s, Widower’s or Surviving Civil Partner’s (Contributory) Pension (WCP) payable under Chapter 18 of Part 2 of the Social Welfare Consolidation Act 2005. His application was refused on the grounds that he did not satisfy the definition of widow, widower or civil partner, and therefore, did not come within s. 124(1) of the 2005 Act. He and his children challenged that decision, and the validity of s. 124 on the grounds that it infringed their right to equality both under the Constitution and the European Convention on Human Rights. The case was the subject of a comprehensive judgment in the High Court ([2022] IEHC 552). The claim was dismissed in the High Court. Leapfrog leave to appeal to the Supreme Court was granted ([2023] IESCDET 25) on 20 February, 2023. The appellants sought and were granted permission to seek an adjournment to revise their written submissions to contend that s. 124 is repugnant to the Constitution on the basis that the O’Mearas are a Family for the purpose of Article 41 of the Constitution, and in doing so to argue that the statement of Walsh J for the Court in The State (Nicolaou) v An Bord Uchtála [1966] I.R. 567, that the Article 41 Family was limited to a marital family, was wrong and should be overruled or disavowed.

Held by O'Donnell CJ that s. 124, insomuch as it excluded the appellants from the benefit provided by it, failed to comply with the obligation in Article 40.1 of the Constitution to treat all human persons equal before the law. He noted that the case raised the familiar problem of a successful equality challenge to a provision which is found to be under-inclusive. He noted that the payment of benefit to widows, widowers or surviving civil partners was not challenged or said to be unconstitutional; instead, the unconstitutionality found in the case was that the benefit did not extend to Mr O’Meara. However, O’Donnell CJ found that should the Court make a declaration that s. 124 of the 2005 Act is invalid having regard to the Constitution, that would deprive those who are acknowledged to be entitled to WCP, a beneficial statutory right, to which it was not suggested they are not entitled.

O'Donnell CJ made a declaration that s. 124 is inconsistent with the Constitution insofar as it does not extend to Mr O’Meara as a parent of the second, third and fourth appellants. O’Donnell CJ also made an order of certiorari quashing the decision of the first respondent, the Minister for Social Protection, to refuse Mr O’Meara WCP. O’Donnell CJ held that this was not a complete solution for the appellants since it would require a legislative amendment to positively provide for benefit in their case.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 22 ^nd day of January 2024

Part I — Introduction

1 . I agree with the judgment which Woulfe J. has just delivered and with the order which he proposes. I also gratefully adopt his summary of the facts, so that it is not necessary for me to recapitulate the details of the background facts of this appeal or the relevant legislative provisions. I also agree generally with the judgment of O'Donnell C.J. insofar as he deals with the Article 40.1 issue which arises in this case, but I respectfully disagree with the remainder of his judgment so far as the interpretation of Article 41 is concerned.

2 . As Woulfe J. has explained, the first appellant, John O'Meara, was the long-term partner of the deceased, Michelle Batey. She tragically died at a young age in January 2021 as a result of a combination of cancer and COVID-19. They had been in a committed relationship together for some twenty years prior to her death. Ms. Batey was the mother of the second, third and fourth applicants, who were born in 2008, 2010 and 2012 respectively. Prior to her death, the couple lived with their children in their family home in Co. Tipperary. While the couple had originally decided not to get married, they had nonetheless hoped to do so once the serious nature of Ms. Batey's medical diagnosis manifested itself. As it happens, Ms. Batey passed away in January 2021 before this could prove possible.

3 . Following Ms. Batey's death Mr. O'Meara applied for a particular contribution-based social welfare payment, namely, the widow's, widower's or surviving civil partner's contributory pension (“WCP”). This is provided for by Chapter 18 of Part II of the Social Welfare Act 2005 (“the 2005 Act”). The payment in question is contribution-based, and it is not a means-tested payment. For completeness one may add – although this is not relevant to Mr. O'Meara's claim – that WCP cannot be claimed if the claimant is in receipt of any other social welfare payment or if the person is a participating in a Community Employment scheme.

4 . As it stands, however, the relevant provisions of the 2005 Act confine the payment of WCP to those who have been married or who have entered into civil partnerships. Since Mr. O'Meara had never married Ms. Batey or entered into a civil partnership with her, he is ineligible for that payment. This was confirmed by a decision dated 27 ^th May 2021 of a Social Welfare Deciding Officer following a review of an earlier adverse decision in response to Mr. O'Meara's claim. It is accepted however that, having regard Mr. O'Meara's PRSI contributions at the time of Ms. Batey's death, Mr. O'Meara would otherwise have been entitled to the full rate of WCP. In 2023, Mr. O'Meara would have been entitled to a weekly sum of €225.50, plus a €50 weekly payment in respect of each child.

5 . Following this refusal of WCP benefit, Mr. O'Meara and his three children then challenged the constitutionality of the relevant provisions of Chapter 18. That claim failed in the High Court before Heslin J. who rejected this contention in a thoughtful and careful judgment: see O'Meara v. Minister for Social Protection [2022] IEHC 552. This Court subsequently granted leave for a direct appeal to be carried to be this Court pursuant to Article 34.5.4° of the Constitution.

6 . This appeal raises the question of whether an unmarried couple who have nonetheless lived together for an appreciable period – such as Mr. O'Meara and Ms. Batey did – constituted a “family” for the purposes of Article 41 of the Constitution. Previous decisions of this Court – commencing with The State (Nicolaou) v. An Bord Uchtála [1966] IR 567 – have ruled that the protection afforded by Article 41 is confined to married couples. In my opinion, however, although the Nicolaou doctrine has frequently been followed in later decisions, save for the important recent judgments of O'Donnell and McKechnie JJ. in Gorry v. Minister for Justice [2021] IESC 55 and that of McKechnie J. in Re JJ [2021] IESC 1, [2022] 3 IR 1, the relevant constitutional provisions have not, I think, been the subject of a full analysis in any previous decision of this Court.

7 . The fundamental ratio of Nicolaou is that a non-marital family does not – and can never – come within the guarantees attaching to the family in Article 41 of the Constitution. I consider, however, that this conclusion is simply not sustained by any close reading of the actual text of the Constitution itself. I say this for the following reasons.

Part II: The decision in The State (Nicolaou) v. An Bord Uchtála

8 . In the first place the language of Article 41 – and, indeed, Article 41.3.1° upon which Walsh J. placed so much reliance in his judgment for this Court in Nicolaou – draws a distinction between the family and marriage. If the reference to “the Family” in Article 41 was to be read as being synonymous with marriage, one would have expected that this would have been reflected in the actual wording of this provision itself, so that instead of simply referring to “the Family” in Article 41.1.1°, the Constitution would have defined this phrase as referring only to married couples and their children. The drafters of the Constitution were, after all, perfectly capable of defining terms when they thought it necessary to do so: the definitions of “Money Bill” in Article 22.1.1° and Article 22.1.2° and the definition of “the Courts” in Article 34.2 are just among a number of illustrative examples of this scattered throughout the Constitution.

9 . The absence of such a definition is, in any event, scarcely an oversight. As Kingsmill Moore J. observed in Jordan v. O'Brien [1960] IR 363 at 374 the word “family” has a variety of meanings. In that case the question was whether the sister of the deceased was a member of the “family” for the purposes of s. 38 of the Rent Restrictions Act 1946 so that she could inherit the statutory tenancy of a house in which she had been living with her now deceased brother for the previous fifty years. This Court agreed that this provision of the 1946 Act should not necessarily bear the same construction as the meaning of the word “Family” in Article 41 of the Constitution as the context of these provisions was quite different and they were therefore not in pari materia. The Court...