O'Meara v The Minister for Social Protection
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 07 October 2022 |
| Neutral Citation | [2022] IEHC 552 |
| Year | 2022 |
| Court | High Court |
| Docket Number | [2021 No.783 JR] |
[2022] IEHC 552
[2021 No.783 JR]
THE HIGH COURT
JUDICIAL REVIEW
Social welfare – Constitutionality – Social Welfare Consolidation Act 20052005 Part 2 Chapter 18 – Applicants challenging the constitutionality of Chapter 18 of Part 2 of the Social Welfare Consolidation Act 2005 – Whether Chapter 18 is incompatible with European Union law and with the European Convention on Human Rights Act 2003
Facts: The deceased, in January 2021, was lost to breast cancer and Covid 19. She was the long-term partner of the first applicant, Mr O’Meara, and they had been living together in a committed relationship for 20 years. She was mother to the second, third and fourth applicants, who were born to their relationship in 2008, 2010 and 2007, respectively. It was acknowledged that the first applicant never married or entered into a civil partnership with the deceased. Thus, the first applicant did not come within the category of persons entitled to receive a specific social welfare payment, namely, the widow’s, widowers or surviving civil partner’s contributory pension (WCP), established and paid in accordance with Chapter 18 of Part 2 of the Social Welfare Consolidation Act 2005 for the benefit of married couples and those who enter into a civil partnership. The applicants challenged the constitutionality of Chapter 18. It was pleaded that Chapter 18 is incompatible with European Union law and with the European Convention on Human Rights Act 2003.
Held by the High Court (Heslin J) that the logic of the case advanced by the applicants was that the WCP is properly payable to all, regardless of marital status; that being so, even if the deceased had not cohabited with their partner for years, or decades, the pension was payable (subject only to social insurance requirements being met). He held that to have a child is not a qualification requirement for receipt of WCP and, thus, the logic of the applicants’ argument is that WCP is also properly payable to an unmarried person who never had children with their partner, irrespective of how many years, or decades earlier the couple ceased to cohabit. He found that the logical consequences, were the applicants correct (and he was entirely satisfied that they were not) would represent ‘policy’ decisions which are the exclusive preserve of other branches of government; moreover, it would represent the allocation of finite resources to persons and groups in circumstances where the need for or appropriateness of providing such support had not been determined by the Oireachtas. It seemed to him that to do what the applicants contended for would involve the Court violating the separation of powers principle and interfering, impermissibly, in the carefully constructed architecture of the State’s social welfare system, of which the WCP represents a part. He held that it would, in substance, be for the Court impermissibly to involve itself in the difficult task, entrusted to the Oireachtas, of making decisions as to who is to obtain the benefit of scarce public resources. He held that these (albeit theoretical) consequences are in stark contrast to the legitimate aim of Chapter 18 itself, namely the support of marriage.
Heslin J held that the above consequences undermine that legitimate aim of the Oireachtas, highlighting that this was a claim which must be dismissed. The Court could not accept the submission made on behalf of the applicants that the reason for WCP “is to protect the family which includes the children”; that is not the reason for or aim and focus of WCP. He held that this case was never about families or the applicants’ family; the case hinged on a legitimate decision made by the State to support, not families, but those who made the choice to enter the marriage contract (thereby assuming legal rights and obligations inter se as married persons) where their spouse has died.
Claim dismissed.
JUDGMENT of Mr. Justice Heslin delivered on the 7th day of October, 2022
. The backdrop to these proceedings is tragic. In January 2021, a young woman was lost to breast cancer and Covid 19. She was the long-term partner of the first applicant and they had been living together in a committed relationship for 20 years, having met when she was 23 and the first applicant was aged 20. She was mother to the 2nd 3rd and 4th applicants, who were born to their relationship in 2008, 2010 and 2007, respectively. The applicants' pain is unimaginable to those who have not experienced such loss. In circumstances where all 4 applicants were present in court throughout the hearing, this loss as well as their deep love and concern for each other was evident. None of the foregoing is at issue in these proceedings. Nor is it in dispute that the applicants have at all times been, and remain, part of a loving family in the sense in which the term “family” is generally understood in our society.
. What this case concerns is a specific social welfare payment, namely, the widow's, widowers or surviving civil partner's contributory pension (hereinafter “WCP”). The said payment is established and paid in accordance with Chapter 18 of Part 2 of the Social Welfare Consolidation Act 2005 (“the 2005 Act”) for the benefit of married couples and those who enter into a civil partnership.
. It is acknowledged that the first applicant never married or entered into a civil partnership with the deceased. Thus, the first applicant does not come within the category of persons entitled to receive the WCP.
. In the present proceedings a challenge is made to the constitutionality of Chapter 18 of Part 2 of the 2005 Act (hereinafter “Chapter 18” or “Chapter 18 of the 2005 Act”). It is also pleaded that Chapter 18 of the 2005 Act is incompatible with European Union law and with the European Convention On Human Rights Act 2003 (hereinafter “the ECHR Act 2003” or “the 2003 Act”).
. Counsel for the applicants made clear at the outset that the arguments based on EU law, although having been carefully considered, could not be pressed further. This court was informed that the focus of the claim was very much on the alleged unconstitutionality of Chapter 18, in respect of the position of the 2nd to 4th applicants. Counsel for the applicants made a submission to the effect that “ if the children through their father were entitled to the payment”, it would represent “ a significant sum of money” to which the children of a married couple are entitled, but which, contend the applicants, is denied to the 2nd to 4th applicants. This, submitted the applicants' counsel, represented discrimination against the 2nd to 4th applicants.
. Counsel for the applicants acknowledged at the outset the special position occupied by marriage under the Constitution, in light of Article 41.3. Given that acknowledgement, I asked the applicant's counsel whether the first named applicant conceded that the distinction (between, on the one hand, a married couple, and on the other hand, a couple who cohabited for many years) which appears to be reflected in Chapter 18, did not constitute direct discrimination against him? This question was answered by counsel for the applicants by saying that, were the first applicant to advance such a case “on his own”, it might come close to being “unstateable”, given the very considerable difficulties which would arise having regard to the provisions of the Constitution and jurisprudence from the Court of Justice. In essence, it was made clear that “without the children” the present case would not and could not be brought.
. The WCP was originally introduced for widows on 1 January 1936, under the Widows And Orphans Pensions Act 1935. It was subsequently extended to widowers on 28 April 1994 in the Social Welfare Act 1994. From 1 January 2011, it was further extended to surviving civil partners, by virtue of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (hereinafter the 2010 Act).
. Section 123 of Chapter 18 contains definitions of, inter alia, “civil partner”; “pension”; “relevant time”; “spouse”; “widow”; “widower” and “yearly average”. This is followed by s.124 which makes clear that, subject to the provisions of the 2005 Act, “a widow, widower or surviving civil partner shall be entitled to a pension…”
. The WCP is a weekly pension paid to the husband, wife or civil partner of a deceased person and is available to those who satisfy the necessary PRSI contributions, be that on their own record or having regard to the record of the deceased spouse or partner.
. The WCP is not means tested. Thus, it is payable to a qualifying recipient regardless of their income or outgoings, large or small. Furthermore, WCP is paid to a qualifying recipient irrespective of that person's ability to work.
. However, generally speaking, a person cannot be in receipt of WCP and another social welfare payment at the same time. A person is also disqualified from receiving WCP if they are on a Community Employment scheme.
. If a qualifying recipient enters into a new marriage or begins cohabiting with another person, they cease being entitled to WCP.
. It is uncontroversial to say that the WCP comprises one of a range of social welfare payments within a sophisticated system operating in this State and that, whilst a surviving cohabitant is not entitled to WCP, they may be entitled to other social welfare payments, subject to need. Depending on the circumstances, these might include One Parent Family Payment,...
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John O'Meara and Others v The Minister for Social Protection, Ireland and The Attorney General
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