Social Welfare Appeal G0138: The O’Meara Case (Widow’s Contributory Pension)

Title of Payment: Widow’s (Contributory) Pension

Date of Final Decision: 22 January 2024

Keywords: Widow – Widower – Contributory – Pension – Marriage – Family

Organisation who represented the Claimant: FLAC

Casebase no: G0138

Case Summary:

This case relates to an appeal challenging the constitutionality of the refusal of the Widower’s Contributory Pension (“WCP”) to non-marital families. 

Mr O’Meara and his life partner, Ms Michelle Batey, began their relationship around 2002.  They had their first child in 2007, their second child in 2008 and their third child in 2010. The Court acknowledged that they “lived together in a committed, stable and long-term family unit”. The couple had decided not to get married as Ms Batey had a negative experience of her own parents’ marriage and did not want to replicate this for her children. In 2021, Ms Batey passed away from breast cancer and COVID-19.

Following the death of his partner, Mr O’Meara applied for WCP under the Social Welfare Consolidation Act, 2005 (the “Act”). He was refused WCP on the basis that he did not fall within the definition of “widower”, as he had not been married to his partner. Mr O’Meara and his three children brought a claim to the High Court that section 124 of the Act infringed their right to equality under the European Convention on Human Rights and the Constitution. The High Court dismissed this claim. 

On appeal to the Supreme Court (the “Court”), however, the decision to refuse WCP to Mr O’Meara was quashed. The applicants were successful, and the appeal was allowed.

Relevant Legislation:

The Social Welfare Consolidation Act, 2005 is the key piece of legislation in this case.

Section 123 of the Act defines “widower” as “a widower or a man who would otherwise be a widower but for the fact that his marriage has been dissolved, being a dissolution that is recognised as valid in the State”.

Section 124(1) of the Act provides that “subject to this Act, a widow or widower shall be entitled to pension…”.

Therefore, this Act clearly set outs that only those who fall within the definition of “widower” i.e., those who are married, shall be entitled to the WCP.

Key Arguments:

The applicants (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 her father and next friend John O’Meara)) argued that:

1. section 124 of the Act is repugnant to the Constitution on the basis that the O’Mearas are a Family for the purpose of Article 41 of the Constitution’.
   1. This argument was an equality argument. It was argued that if the O’Mearas are a family under Article 41 of the Constitution, then each family should be treated equally before the law.
   1. Both children of married and unmarried parents must rely on their parents emotionally and financially, and they both suffer the same loss when a parent passes away. Therefore, it was submitted that there was ‘stark differential treatment’ of these children by section 124 of the Act.
   1. Similarly, both married and unmarried parents suffer emotional and financial loss on the death of their partner. This effects both parents’ ability to provide for their children.
   1. These distinctions were found by the Court to be ‘arbitrary and capricious’, failing to hold parents ‘equal before the law’.
   1. The applicants also relied on Re McLaughlin, which at paragraph 52 of its judgement stated, ‘a policy in favour of marriage or civil partnership could constitute justification for differential treatment where children were not involved but could not do so in relation to a benefit targeted at the needs and well-being of children’.

• ‘the statement of Walsh J. for this Court in The State (Nicolau) v. An Bord Uchtála [1966] I.R. 567 (“Nicolau”) that the Article 41 Family was limited to a marital family, was wrong and should be overruled or disavowed.’
  • In the judgement of Nicolau, the Court held that ‘Article 41 deals with only one kind of family, namely a family founded on the institution of marriage’.
  • The applicants argued that this statement should be disavowed on the basis that the O’Meara’s were a Family under the meaning of Article 41.
  • The Court however held that it was not necessary to address this to resolve the case at hand. The Court focused instead on the argument of equality outlined above.

The respondents (The Minister for Social Protection, Ireland and the Attorney General) argued that:

1. they relied on the reasoning in the judgement of Michael and Emma v. The Minister for Social Protection, The Attorney General and Ireland [2019] IESC 82, [2021] 3 I.R. 528 (“Michael and Emma”) to allow differentiation to be made ‘on the basis of the marital status of the parent recipient of the benefit’.

1. The case of Michael and Emma dealt with whether asylum seekers could be eligible for the payment of child benefit. In its judgement, the Supreme Court held that it was ‘permissible’ for a distinguishment to be made between ‘children of parents habitually resident in Ireland’ and ‘children of asylum seekers’. Therefore, child benefit would not be payable to asylum seekers.
   1. The respondents argued that this same reasoning be applied to the case at hand.
   1. The Court rejected the idea of applying the reasoning of Michael and Emma as it found the facts of each case to be too dissimilar.

Decision of the Supreme Court:

The Supreme Court allowed the appeal. The Court held that refusal to extend WCP to Mr O’Meara ‘as a parent of the second, third, and fourth appellants’ was unconstitutional. The Court declared that section 124 of the Act was inconsistent with the Constitution, and subsequently quashed the Minister’s decision to deny Mr O’Meara WCP.

The Court did not however declare section 124 of the Act as unconstitutional due to the ramifications this would have on individuals who currently receive WCP.  Instead, the Court stated that this is a matter for the Oireachtas to legislate on.

It should be noted that although the Court did not decide on the correctness of the Nicolau Family statement in this judgement, it was held that this should await to be decided upon in a future case in which it is necessary to do so.

Date of final Decision: 22 January 2024

Observations:

It could be said that the Court have implied that where there is a family with non-married parents, and one parent passes away, the surviving parent should be entitled to WCP.

As stated in paragraph 52 of the judgement, ‘in the ordinary way, therefore, the operation of the system involves the court stating definitively, what the law is…and allowing the Oireachtas…and the people…to consider if they are content with the outcomes that the law as so interpreted produces and if so, to build upon it, and if not, to qualify it or perhaps change it entirely’.

Therefore, it is ultimately now up to the Government to consider amending legislation in light of this judgement.

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