A Supreme Court judge concluded that social welfare law was unconstitutional insofar as it excluded a surviving parent from an increased rate of Widower’s (Contributory) Pension because the parent had not been married to the deceased. Justice Woulfe said he would allow the appeal, declare the relevant provisions invalid to that extent and quash the refusal of the application.
The judgment, delivered on 22 January 2024, concerns John O’Meara and three minor children, whose names are anonymised in parts of the text. O’Meara and M.B. had lived together in a committed relationship for almost 20 years and had three children. They were not married and could not have entered a civil partnership within the meaning of the 2010 Act, the judgment says. M.B. died in 2021.
O’Meara applied for the pension in March 2021, including increases for the children. The Department of Social Protection refused the claim because he was not the deceased’s legal widower. A review upheld that decision in May 2021. The High Court dismissed the family’s challenge in October 2022, and the appellants brought a direct appeal to the Supreme Court.
The appellants argued that the exclusion discriminated against the children and their family as well as the surviving parent. They said the increased payment was intended, at least in part, to support children. The State argued that the pension’s purpose was to support a surviving spouse or civil partner, and that eligibility reflected the legal obligations of those relationships.
Woulfe accepted that the children could not themselves receive the payment, but said that did not answer whether the increased rate benefited them. He considered the appropriate comparison to be between a marital or civil-partnership family entitled to the increase and a comparable non-marital family excluded from it. The judgment records competing calculations of the weekly payment: the appellants put it at €400.50, while the State’s figure was €375.50. Woulfe used the State’s figure, compared with a personal rate of €225.50, to conclude that the increase was €150 a week, or more than two-thirds of the personal rate.
He concluded that the difference in treatment was not objectively justified and lacked a rational connection to the aim of promoting marriage and civil partnership, particularly because children could not choose their parents’ relationship status. He also said the exclusion was inconsistent with Article 40.1 of the Constitution. He did not reach a concluded view on the separate European Convention on Human Rights challenge.
The supplied extract contains Woulfe’s judgment only. It does not show whether the other judges agreed, or record the Supreme Court’s overall disposition or formal order. His proposed outcome should therefore not be read as the Court’s final decision.