Appeal against refusal to grant dad of three widowers pension after partner died from Covid-19

The Supreme Court has agreed to hear an appeal against a decision that the long-time partner of a woman who died from Covid-19 is not entitled to the Widower's Pension. 

Granting a direct or leapfrog appeal against a judgment of the High Court, a three-judge Supreme Court panel said that John O'Meara, and his three children's challenge against the Minister for Social Protection's refusal to grant him the pension raises points of general public importance in the area of social welfare law. 

Mr O'Meara claim for the Widowers Contributory Pension (WCP) arose after his partner of over twenty years Ms Michelle Batey died after contracting Covid19 in January 2021.

In his action Mr O'Meara, and the couple's three minor children, had claimed that sections of the 2005 Social Welfare Consolidation Act which excluded him from receiving the pension, because he was not married to nor had entered into a formal civil partnership with his late partner, despite their long relationship together amounted to discrimination.

Their action was against the Minister for Social Protection, Ireland and the Attorney General which had opposed the claim. 

Last October Mr Justice Mark Helsin, who said that while he had enormous sympathy for the applicants, dismissed their claim against the Minister's refusal.

Mr Justice Heslin said that the challenge centred on the constitutionality of parts of the 2005 Act and the entitlement of the children, through their father Mr O'Meara, were entitled to the payment. 

The judge held that they were not entitled to the payment and rejected their claims that the State's refusal to make the payment amounted to a form of discrimination.
He said that the legislation concerning who is entitled to be paid this particular pension is extremely wide, however, it does not apply to persons in the applicants' situation.

It was the role of the Oireachtas to decide exactly who should benefit from this pension, the judge said, adding that the making of such decisions "is not a role which this court can legitimately play."
Cohabitation he said was not a qualification requirement for the entitlement of the payment.

The case, he said, was ultimately about the State's decision to support not families but for those who make a choice to enter into a marriage contract whose spouse has died.

The payment, the judge also held is not a benefit for any child paid through a parent and is not a payment directed at supporting families with children.

It is directed, he said, at supporting a bereaved spouse and is a payment to which a person is entitled if they were married to the deceased.

It is, the judge added, payable irrespective if the said couple had any children or not. 

Mr O'Meara sought to have his appeal against that decision heard directly by the Supreme Court.

The state respondents had argued that the payment is for persons who have entered into a civil partnership and who have therefore entered into a legally recognised relationship that confers rights and obligations on the contracting partners. 

The Act provides for certain supports to be provided to the surviving spouse or civil partner including assistance in dealing with the economic hardships of that loss, the state submitted.

The establishment of the payment is one of the mechanisms by which the State supports the institution of marriage, and the fostering of the legal and social bands which derive from that institution, the respondents said.

The respondents opposed O'Meara's application to the Supreme Court and argued that no issue of public importance had been raised.

In a written determination the Supreme Court panel made up of Mr Justice Peter Charleton, Mr Justice Seamus Woulfe and Mr Justice Maurice Collins said the appeal raised difficult, complex, and important issues of general public importance.

The judges said that they were of the view that it was appropriate to grant permission allowing a direct or leapfrog appeal to be heard by the Supreme Court. 

The court said it was granting leave in respect of certain issues including if the non-payment of the WCP in the O'Meara's circumstances is consistent with the Constitution, and articles of the European Convention on Human Rights.

The court said that the issue concerning the nature and the purpose of the WCP, and if it is to be regarded in any way as a benefit for children, may be addressed within the appeal.

A date for the hearing of the appeal will be fixed at a later date.

In his claim Mr O'Meara said that he had planned to marry Ms Batey. 

Tragically she was cruelly taken away before the couple could get married. 

She was diagnosed with breast cancer in 2018 and had been recovering well following treatment including chemotherapy. 

However, her condition made her vulnerable to Covid19, which she contracted in December 2020. Following her death Mr O'Meara, an agricultural plant contractor of Grawn, Toomervara, Nenagh Co Tipperary applied for the widower's pension, in respect of him and his three children, on the basis the children reside with him. 

In April 2021 deciding officers on behalf of the Minister refused the application, on the grounds that there was no civil marriage between Mr O'Meara and Ms Batey.

He sought to revise that decision claiming that he and Ms Batey had lived together full time, in effectively a marital relationship for twenty years.

He also submitted that the couple had been cohabiting together for many years and qualified for the pension under the 2010 Civil Partnership laws. 

That application was also unsuccessful.

Mr O'Meara claimed he was told that the Minister was bound by legislative provisions in the 2005 Act restricting the payment of survivor benefits to those who were married or in a formal civil partnership.

As a result of that refusal the applicants brought judicial review proceedings challenging the Minister's decision.

It is claimed that the Minister's refusal, and the contents of the Act amount to discrimination against both Mr O'Meara and the children.