Social Welfare – Appeal Regarding Decision to Award an Amount under the State Pension (Contributory) Scheme in accordance with rules set under the Homemakers Scheme.
CLM represented a client in her appeal of a decision by the Department of Employment Affairs and Social Protection (DEASP) made in July 2017 as to the weekly payments to which our client was entitled under the State Pension (Contributory) (SPC).
In April 2017, the Appellant was referred to CLM by Age Action Ireland. She had been employed between 1967 and 1971, at which time she became pregnant and left the workforce to become a homemaker. She had four children, the last of whom was born in 1986. She returned to the workforce in 2002 and continued working until 2016 when she reached the age of 65 and retired.
Our client had made social insurance contributions between 1967 and 1971. During this time, she worked in the private sector and was never subject to any legal marriage bar. When she returned to the workforce in 2002, she resumed making payments until her retirement.
Initially, the Department decided that our client was entitled to a weekly pension payment of €155. By letter dated 12 July 2017, the Department stated that this was calculated by reference to 974 social insurance contributions over the 50-year period from 1967 to 2017. This gave the Appellant a yearly average of 19 contributions for pension purposes.
CLM sought our client’s file pursuant to the provisions of the Freedom of Information Acts and sought a review of the decision querying the total contribution calculation and submitting that the Appellantshould benefit from the Homemakers’ Scheme (the Scheme) as provided by Sections 108 and 109 of the Social Welfare Consolidation Act 2005 (the 2005 Act). The Scheme provides that time spent out of the workforce rearing children under 12 years of age may be disregarded when calculating the yearly average number of contributions for pension purposes.
By letter dated 11 August 2017, the Department noted an error in the calculation of the total number of contributions. Further, the Department determined that the Appellant should be entitled to the benefit of the Homemakers Scheme.However, this benefit was limited to four years, as the Scheme did not have statutory effect prior to 6 April 1994. The revised decision had the effect of increasing the Appellant’s total contributions to 1003, and yearly average to 22, thereby increasing her rate of payment from €155 to €202 weekly.
Notwithstanding the above, CLM pursued an appeal asserting that the Homemakers Scheme does not present as compatible with Articles 6, 14 and Article 1 Protocol 1 of the European Convention of Human Rights (ECHR), and the obligation upon the Minister for Employment Affairs and Social Protection pursuant to Section 3 of the ECHR Act 2003. In view of these legal questions CLM requested that the Chief Appeals Officer to refer the matter to the High Court pursuant to S 306 of the 2005 Act. It was submitted on behalf of our client that the Homemaker’s Scheme as established by Sections 108 and 109 of the 2005 Act, discriminates indirectly against women and directly against older people without any legitimate legislative purpose.
By letter dated 14 March 2018, the Chief Appeals Officer notified our client and CLM of her refusal to refer the question of the Scheme’s compatibility with the ECHR and the ECHR Act 2003 to the High Court. The Chief Appeals Officer held that as questions relating to compliance with the Constitution and/or the European Convention of Human Rights could not be referred to an appeals officer in the first instance, the Chief Appeals Officer does not have jurisdiction in the matter.
Further, by way of decision dated 3rd April 2018 an Appeals Officer disallowed the Appellant’s appeal. The Appeals Officer held that the correct rate of payment had been awarded given the level of contributions made by the Appellant and the relevant statutory provisions as set out in the 2005 Act.
This case highlights the difficulties faced by a client in trying to challenge systemic issues of discrimination as set out in the provisions of the Homemakers’ Scheme. CLM have now sought to pursue this matter through a different avenue to seek to redress this issue by other means.