On 22 January the Supreme Court unanimously ruled that s124 of the Social Welfare Consolidation Act, 2005 is invalid having regard to the provisions of Article 40.1 of the Constitution(the equality guarantee) in so far as it does not extend to the applicant as a parent of the second, third and fourth named applicants. In 2021, the applicant’s (John O’Meara) long-term partner died. The couple had been together in a committed relationship for nearly twenty years and had three children but were neither married nor in a registered civil partnership. Although there was an intention to marry it never happened because the applicant’s partner fell into a coma and died due to COVID-19 complications while recovering from breast cancer. The applicant who was represented by FLAC, was unsuccessful in his application for Widower’s (Contributory) Pension, on the grounds that he was not a widower or surviving civil partner. The High Court dismissed the challenge to the constitutionality of Chapter 5 of the 2005 Act . The Supreme Court granted leave to appeal directly on the issues of whether the non-payment of WCP is consistent with Article 40.1 and 41 of the Constitution and/or compatible with the ECHR.
The Court found that insomuch as the section permits payment of WCP to be made to a surviving spouse, but refuses any such payment to a surviving partner of a non- marital relationship with dependent children, it makes a distinction that is arbitrary and capricious, and one which is not reasonable capable, when objectively viewed in the light of the social function involved, of supporting the precise classification challenged and fails to hold them as parents equal before the law contrary to Article 40.1.
Woulfe and Hogan JJ in their judgements held that the that the applicants were a family for the purposes of Article 41 and that the statement made in The State (Nicolaou) V. An Bord Uchtála that the family referred to in Article 41 is limited to the family based on marriage is wrong. Hogan J. held that the decision was plainly wrong and totally unsatisfactory at almost every level, and it was based on an incomplete interpretation of the text of the relevant Constitutional provisions. He also held that the reasoning in Nicolaou had been overtaken by the “new’ Article 42A2.1.
However, O’Donnell C.J. (Dunne, O’Malley, Murray and Collins JJ. concurring) held that it was not necessary to consider the correctness of the statement made in Nicolaou that the Article 41 family is limited to the marital family, in order to resolve the case.
Following the judgement Eilis Barry, the Chief Executive of the Free Legal Advice Clinic made a that the judgement is historic and, “affirms the equality of all children and parents before the law. It requires the Government to re-examine the legislation concerning entitlement to survivors’ pensions FLAC would encourage them to take an inclusive approach to this process and to engage with relevant organisations such as Treoir to address the gaps in the existing survivor’s pension scheme.”
Anyone who is in a similar situation as Mr O Meara should make an immediate application for such a payment. If they have had an application refused in the past they should seek to have that decision reviewed.
Click here for the judgements