The High Court has held that the failure of the Civil Service Spouses’ and Children’s Contributory Pension Scheme to provide a spouses’ pension to a surviving qualified cohabitant is incompatible with Article 40.1 of the Constitution.
The applicant had lived in a committed relationship with the late James Kingston from 1998 until Mr Kingston’s death in 2022. Mr Kingston was a civil servant with 27 years’ service, and the applicant was financially and practically dependent on him due to disability. Following Mr Kingston’s death, the applicant was declared a “qualified cohabitant” under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. His application for a spouses’ pension under the Scheme was refused on the basis that the Scheme confined eligibility to spouses and civil partners.
The refusal was maintained notwithstanding the Supreme Court’s decision in O’Meara v Minister for Social Protection [2024] IESC 1, where the exclusion of surviving cohabitants from a widower’s contributory pension was found to breach Article 40.1. The applicant sought judicial review of the minister’s refusal to extend Scheme benefits to him.
Delivering judgment, Mr Justice Cian Ferriter accepted that caution was required in applying the reasoning in O’Meara to an occupational pension scheme, which differs from social welfare benefits and forms part of the employment relationship and deferred remuneration. He further accepted that it may, in principle, be legitimate for occupational pension schemes to differentiate on the basis of marital or civil status.
However, applying the principles governing Article 40.1, the court focused on the statutory objective of the Scheme. It held that the purpose of the spouses’ pension is to meet the financial need arising from the loss of support previously provided by the deceased member to their surviving life partner. The Scheme itself linked eligibility and cessation of benefits to cohabitation, remarriage or the formation of new partnerships, indicating that the relevant social function was the provision of financial support to a surviving life partner rather than the formal legal status of the relationship.
Against that objective, the court found no difference in social function between a surviving spouse or civil partner and a surviving qualified cohabitant. In those circumstances, the exclusion of qualified cohabitants was not rationally connected to the purpose of the Scheme and resulted in unjustifiable discrimination contrary to Article 40.1.
The court also rejected the argument that section 72 of the Pensions Act 1990 rendered such differentiation constitutionally permissible in all cases, holding that the provision does not displace constitutional equality requirements.
The High Court accordingly indicated that the applicant is entitled to a declaration that the Scheme’s failure to provide him with a spouses’ pension is incompatible with Article 40.1 of the Constitution.
FLAC welcomed the judgment and noted that the decision centres around the principles established in the landmark O'Meara decision in which FLAC represented John O’Meara and their children in a case concerning their exclusion from the Widower’s Pension Scheme. In the Dáil debates concerning the legislation introduced as a result of the O’Meara decision, it was suggested that there are 150,000 cohabiting couples/families who could potentially benefit as a result of that case.