Complainant

Respondent

Parties

Sinead Carolan

Minister for Public Expenditure & Reform

Representatives

Dr John Cooney

Cathy Smith BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00035671-001

24/03/2020

The Complainant submits that she has been discriminated against by reason of her Civil Status in relation to an occupational pension. A Complaint Form was received by the WRC on 24 March 2020. A hearing took place on 29 September 2020.

The Complainant is a divorced woman who entered into a relationship with a divorced man, her partner, Antonio. Unfortunately, her partner passed away in 2015. Since then, the Complainant has pursued payment of a Death Benefit for herself from her partner’s occupational pension fund, but she has been refused payment by the Respondent.

An incorrect Respondent, another Government Department, was named in the Complaint Form.   The correct Respondent attended the hearing and was content to have the name of the Respondent amended. The appropriate Respondent to the complaint is the Minister for Public Expenditure and Reform and not the Minister for Finance. The Respondent is agreeable to the necessary amendment being made correcting the name of the Respondent in this complaint.

The Complainant provided a detailed written submission.

In her Complaint Form the Complainant submitted that the refusal by the Respondent to withhold a widow’s pension from her because of her civil status is discriminatory. In her Complaint Form, the Complainant provided a comparator; a widow who was married to her partner who receives the Window’s Pension.

The Complainant submitted that she had been in a loving and long-term relationship with her partner, who worked for the State in the Department of Justice, until he became ill and died on 12 June 2015. During their relationship the Complainant and her partner had a child, a daughter. After her partner’s death the Complainant applied to the National Shared Services Office (NSSO), a section of the administrators of the Public Service payments for pensions, for herself and her daughter.

The Complainant submits that in September 2015, her daughter received confirmation from the Respondent that she would receive a pension, however, the Complainant was informed that she was not entitled to a pension. The Complainant queried the Respondent’s decision to refuse her entitlement to a pension. The Complainant was informed by the Respondent that she did not have any entitlement to a pension because she had not been married to her partner.

Since the decision was made to refuse her a pension the Complainant has approached several State agencies about the matter. She was advised to take her case to the WRC.

The Complainant submits that she is making a formal complaint against the Respondent for indirectly discriminating against her – because of her civil status as the partner of a former employee who contributed to a death benefit scheme during his working life, in the belief that his family would have some financial support when he was deceased.

The Complainant submits that there are some matters which should be considered in the case.

1.       She and her partner had been in a loving and long-term relationship since April 2003 – a commitment they both took seriously, and which was recognised in their community, by his employer and the State (as evidenced in the means testing of the Department of Employment and Social Protection on her payments).

2.       In August 2004, their daughter was born, and they lived as a family until her partner was placed in full-time care during his illness and until his death in 2015.

3.       The Complainant’s partner was a joint borrower with the Complainant for a property, showing his commitment to his new family.

4.       During her partner’s illness all service providers referred all matters to the Complainant as his personal representative. There was a cultural acceptance that the Complainant was to support the administration of her partner’s care and illness, by his employer and the nursing homes.

5.       Ireland is moving forward with policies that include the ongoing diversity of the family structure and the importance of the parenting commitment to children.

6.       The Single Public Service Pension Scheme states that the death gratuity is payable to “the member’s legal representative” which the Complainant submits is her in this case.

7.       The Pension Scheme also allows for an Adjustment Order when a member becomes separated or divorced from a spouse.   This, the Complainant submits, shows precedence for a death benefit to be made available to the family of a deceased member who is not married.

The Complainant’s written submission concludes by maintaining that she and her partner were in a relationship like that of a typical married couple. While they may not have had a marriage certificate or wedding ceremony this does not diminish the depth of the commitment they had for one another.   While acknowledging that the Death Benefit Scheme has restrictions that prevent the State agency responsible for the payment to release fund to her under current policies the complainant believes that this is discriminatory under the grounds of civil status and should be changed to accept all relationships- married or otherwise.

The Complainant iterates that she and her partner created a family unit, had a daughter together and bought a house for them all to live in. She and her partner held a joint bank account so that she could access his wages each week for the necessities of life. When her partner became ill the Complainant was the contact person for her partner’s employer, the medical and care staff. When he died, she became his next-of-kin to deal with his funeral, outstanding bills and his pensions. However, this is where the recognition of their relationship seemed to end. The Complainant had to deal with the aftermath of her partner’s death without the financial support of a Death Benefit.

This Death Benefit was supposed to ease the financial burden brought about by the death of her partner when he was gone. The responsibility to provide for a child and a home does not differ between married or unmarried couples. The payment of a pension to a member’s surviving representative should not create a difference.   The Complainant draws attention to a Scottish case with similarities to her own.

The Complainant concludes by asking why, if a married (or separated or divorced) widow has access to the Death Benefit, an unmarried widowed parent does not.

At the hearing the Complainant’s representative re-iterated the fact that the Complainant and her partner were in a true, firm and committed relationship, with several examples given to confirm the strength of their relationship, emotionally, socially and financially.   The representative stated this case was about the right of co-habiting couples to equal rights. He stated that the Complainant’s partner had paid into the fund and it was unjust that his family should not benefit from this; that the Complainant should be entitled to support as the surviving member of the relationship.

The Complainant stated that as far as she was concerned the relationship she had with her partner was, “until death us do part and in sickness and in health” and that she had honoured these marriage vows.

Regarding the matter of the complaint being statute barred, the Complainant’s representative stated that if people were not aware of the rule, that was not fair.

The Respondent provided a detailed written submission.

The Respondent submits that this complaint is statute barred as a claim for redress under Section 81E of the Pensions Act, 1990 may not be referred under this section after the end of the period of 6 months from the date of the termination of the relevant employment. This period may be extended for reasonable cause to a period not exceeding 12 months. The Respondent submits that the Complainant submitted her Complaint Form on 24 March 2020. The Complainant’s partner who passed away on 12 June 2015, had retired from his employment with the Department of Justice on 20 February 2009. The complaint according to the Respondent has been submitted 11 years outside the time period required under Section 81 E and is statute barred.

The Respondent submits that the Complainant’s complaint is one of discrimination on the grounds of civil status in not being provided with a spousal pension. She names a female comparator with a different civil status who received the said pension. Without prejudice to the fact that the complaint is statute barred, the Respondent relies on Section 72(3) of the Pensions act, 1990 which states as follows:

“It shall not constitute a breach of the principle of equal treatment on the civil status or sexual orientation ground to provide more favourable occupational benefits to a deceased member’s widow or widower provided that it does not result in a breach of the said principle on the gender ground”.

The Respondent submits that by reason of Section 72(3) of the Pensions Act, 1990 the fact that the Respondent provided more favourable treatment to the Complainant’s chosen comparator, who was a deceased member’s widow, does not, as a matter of law, constitute a breach of the principle of equal pension on the gender ground as both the Complainant and her chosen comparator are of the same gender.

The Respondent submits that, notwithstanding the fact that the complaint is statute barred, when the law is applied to the facts of this complaint, the Respondent is entitled to rely on the defence available to it in Section 72(3).

The Respondent submits that there are no imperative difficulties in applying Section 72(3) to the facts of the within complaint. In particular, the section is not required to be interpreted in light of any EU law. Protection from discrimination on the grounds of the grounds of civil status has been provided for by the Irish legislature, in respect of a number of matters including pensions. This is domestic legislation only. There is no instrument of EU law which provides protection from discrimination on the grounds of civil status.

At the hearing the Respondent’s representative stated that it accepted that the Complainant and her partner had a relationship as outlined above. However, the rules of the pension scheme dictate that in order for a survivor to avail of the benefit they must be either a spouse or a civil partner and the Minister is not permitted to pay the Complainant as sought. The non-payment of the pension to the Complainant might on the face of it seem less favourable treatment but this is allowed under Section 72(3) of the Pensions act, 1990. The Respondent stated that there had been no breach of the Act and that the complaint cannot succeed.

Regarding the question of jurisdiction, the Respondent iterated that Section 81E(5) means the WRC does not have jurisdiction in the matter.

The Complainant has fought long and hard on this matter and it is clear she believes that her claim is valid and just, and I would not disagree with her in this regard.

However, the Act is clear. Section 81E(5) states that a claim for redress in respect of a breach may not be referred after the end of the period of 6 months from the termination of the relevant employment. Section 81E(6) allows for referral to a period not exceeding 12 months for reasonable cause.

In this instant case, the Respondent has put forward that the complaint was lodged 11 years outside the time period required under Section 81E (the Complainant’s partner retired 11 years before the complaint was lodged with the WRC). Whereas I do agree with the Respondent that this case is outside the permitted time limits, I find that the clock for this time only started in 2015, when the Complainant became aware of the decision of the Department that she was not entitled to a pension.

I find the complaint was lodged outside the allowed reference period, and therefore I do not have jurisdiction to hear the complaint.

I do not have jurisdiction in this case.

Civil status, relationship, partner, pension scheme, entitlement, discrimination