WIDOWS PENSION

SOCIAL WELFARE

Widower’s Pension

A widower challenged the constitutionality of Chapter 18 of Part 2 of the Social Welfare Consolidation Act 2005 (as amended) as it denied him a widower’s or surviving civil partner’s (contributory) pension (WCP). He had taken his case to the High Court which upheld the decision of the government department, so he appealed that decision to the Supreme Court. The appellant had lived with his partner for 20 years, had three children, both worked and paid their contributions to the state pension but unfortunately the complainant’s partner became ill and died before they could fulfil their decision to get married.

The Supreme Court noted the appellants’ argument that the ‘family statement’ in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567, which prescribes the Article 41 ‘family’ as being limited to a family “founded on the institution of marriage”, should be overruled on the basis that Article 41 was always meant to include non-marital families. The court found that the Nicolaou case departed from the fundamental issue of equality and considered other cases in its meaning of ‘equality’ in regard to what the Constitution meant on equality.

The Supreme Court ruled that the section of the legislation challenged, providing for the payment to be made only to someone who was married or in civil partnership, was invalid because it did not extend to the complainant as a parent of the couple’s three children.

The court concluded that “in so much as the section permits payment of WCP to be made to a surviving spouse with dependent children, but refuses any such payment to a surviving partner of a non-marital relationship with dependent children, the section makes a distinction that is arbitrary and capricious and which is not reasonably capable when objectively viewed in the light of the social function involved of supporting the precise classification challenged and therefore fails to hold them as parents, equal before the law”.

This decision, which strikes down Chapter 18, Part 2 of the Social Welfare Consolidation Act 2005 (as amended), as unconstitutional will benefit all other people in the same position of the complainant and the government will have to amend that Act to comply with the ruling of the Supreme Court.

O’Meara v The Minister for Social Protection, Ireland and the Attorney General [2024] IESC 1.