Government to pay dependence allowance to gay couple
13/10/2006
Submitted by
ILGA-Europe
Government Decision to Pay Adult Dependent Allowance in Respect of Same Sex Partner of terminally ill
Gay Man
The Equality Authority has welcomed the satisfactory outcome of a case under the Equal Status Acts in relation to the treatment of a same sex couple by the Department of Social and Family Affairs. The case
was being taken by a gay man in relation to the refusal of an adult dependent allowance for his partner
under the claimant’s invalidity pension.
The claimant is in receipt of invalidity pension from the Department of Social and Family Affairs. He is permanently unfit for work due to a terminal illness and has a life expectancy of less than two years.
His partner took unpaid leave from his full time paid employment to take care of the claimant and
expected to be entitled to qualify for an adult dependent allowance on the claimant’s invalidity pension.
Such an adult dependent allowance is payable to unmarried heterosexual couples.
An application to the Department of Social and Family Affairs for this adult dependent allowance was
refused on 10th March 2005. This decision was appealed and a complaint was then lodged with the
Equality Tribunal under the Equal Status Acts. Subsequently, the support of the Equality Authority was
sought and granted.
Both the claimant and his partner suffered significant stress on account of this refusal. It interfered with
the necessary care of the claimant, and his partner had to return to employment.
On foot of correspondence between the Equality Authority and the Department of Social and Family
Affairs, the Department agreed to make an ex-gratia payment in respect of the adult dependent allowance to include arrears due arising from their initial refusal to make the payment. The Department of Social and
Family Affairs have written to the claimant stating that “having considered the circumstances of your
situation, the Government have decided to process your application for qualified adult allowance and,
on a without prejudice basis, to treat your partner on the same basis as the category of persons covered
by the rules in force. Accordingly, provided the standard scheme criteria are met, the allowance will be
paid on an ex-gratia basis together with arrears”. The ex-gratia payment has now been made.
The claimant responding to the outcome of the case stated:
“As a couple who have been together for 17 years, we welcome the Government’s decision to pay adult dependent allowance in our case. We didn’t take this case just for ourselves but in the hope that it will benefit other same sex couples. We pay our PRSI and income tax just like other couples. While the
decision on adult dependent allowance responds to our immediate needs, we also ask our Government
to grant us an entitlement to contributory widow’s pension. In our view the Government should bring in legislation introducing civil marriage without delay”.
The Department of Social and Family Affairs had relied on Section 14 of the Equal Status Acts which
exempts action taken on foot of other legislation from review under the Equal Status Acts.
The Equality Authority had pointed out that Section 2(2) of the Social Welfare (Consolidation) Act 2005
allows the Minister to specify persons to be adult dependents. The Equality Authority contended that
the Minister therefore has a discretion which may be exercised to specify the claimant and his partner as
a couple and that the failure to exercise this discretion constituted discrimination and that the exercise
or failure to exercise this discretion is amenable to review under the provisions of the Equal Status Acts.
Niall Crowley, CEO of the Equality Authority, stated that “the outcome of the case reflects an important recognition for same sex couples and their relationships. The case highlights the difficult and stressful
situations that arise for gay and lesbian people in the absence of a legal recognition for their relationships. There is an urgent need to address this inequality and to accord a legal recognition to same sex couples
on a par with heterosexual couples. The Government decision in this instance marks an important
recognition for this same-sex couple. The Government now needs to provide a comprehensive
recognition for same -sex couples through legislation that provides for civil marriage for same-sex couples.”
Gay Man
The Equality Authority has welcomed the satisfactory outcome of a case under the Equal Status Acts in relation to the treatment of a same sex couple by the Department of Social and Family Affairs. The case
was being taken by a gay man in relation to the refusal of an adult dependent allowance for his partner
under the claimant’s invalidity pension.
The claimant is in receipt of invalidity pension from the Department of Social and Family Affairs. He is permanently unfit for work due to a terminal illness and has a life expectancy of less than two years.
His partner took unpaid leave from his full time paid employment to take care of the claimant and
expected to be entitled to qualify for an adult dependent allowance on the claimant’s invalidity pension.
Such an adult dependent allowance is payable to unmarried heterosexual couples.
An application to the Department of Social and Family Affairs for this adult dependent allowance was
refused on 10th March 2005. This decision was appealed and a complaint was then lodged with the
Equality Tribunal under the Equal Status Acts. Subsequently, the support of the Equality Authority was
sought and granted.
Both the claimant and his partner suffered significant stress on account of this refusal. It interfered with
the necessary care of the claimant, and his partner had to return to employment.
On foot of correspondence between the Equality Authority and the Department of Social and Family
Affairs, the Department agreed to make an ex-gratia payment in respect of the adult dependent allowance to include arrears due arising from their initial refusal to make the payment. The Department of Social and
Family Affairs have written to the claimant stating that “having considered the circumstances of your
situation, the Government have decided to process your application for qualified adult allowance and,
on a without prejudice basis, to treat your partner on the same basis as the category of persons covered
by the rules in force. Accordingly, provided the standard scheme criteria are met, the allowance will be
paid on an ex-gratia basis together with arrears”. The ex-gratia payment has now been made.
The claimant responding to the outcome of the case stated:
“As a couple who have been together for 17 years, we welcome the Government’s decision to pay adult dependent allowance in our case. We didn’t take this case just for ourselves but in the hope that it will benefit other same sex couples. We pay our PRSI and income tax just like other couples. While the
decision on adult dependent allowance responds to our immediate needs, we also ask our Government
to grant us an entitlement to contributory widow’s pension. In our view the Government should bring in legislation introducing civil marriage without delay”.
The Department of Social and Family Affairs had relied on Section 14 of the Equal Status Acts which
exempts action taken on foot of other legislation from review under the Equal Status Acts.
The Equality Authority had pointed out that Section 2(2) of the Social Welfare (Consolidation) Act 2005
allows the Minister to specify persons to be adult dependents. The Equality Authority contended that
the Minister therefore has a discretion which may be exercised to specify the claimant and his partner as
a couple and that the failure to exercise this discretion constituted discrimination and that the exercise
or failure to exercise this discretion is amenable to review under the provisions of the Equal Status Acts.
Niall Crowley, CEO of the Equality Authority, stated that “the outcome of the case reflects an important recognition for same sex couples and their relationships. The case highlights the difficult and stressful
situations that arise for gay and lesbian people in the absence of a legal recognition for their relationships. There is an urgent need to address this inequality and to accord a legal recognition to same sex couples
on a par with heterosexual couples. The Government decision in this instance marks an important
recognition for this same-sex couple. The Government now needs to provide a comprehensive
recognition for same -sex couples through legislation that provides for civil marriage for same-sex couples.”
