The long-time partner of a woman who died from Covid-19 has brought a High Court challenge over the Minister for Social Protection's refusal to grant him the widower's pension.
The action has been taken by John O'Meara, whose partner of over 20 years, Michelle Batey, died on January 31st of this year as a result of contracting Covid-19.
He claims that sections of the 2005 Social Welfare Consolidation Act, which exclude 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, amounts to a discrimination.
The couple, who never married, have three children together, all of whom are minors. The court heard that Mr O’Meara had planned to marry Ms Batey but the couple were unable to go through with their plans.
She was diagnosed with breast cancer in 2018. She had been recovering well following treatment including chemotherapy.
However, her condition made her vulnerable to Covid-19, which she contracted sometime 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.
Last April 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 what was effectively a marital relationship, for twenty years. They had three children and jointly paid the mortgage on their home.
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.
Bound by provisions
Mr O’Meara 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 last May, Mr O'Meara and his three children, represented by Colin Smith Bl, instructed by solicitors for the Free Legal Advice Centre (FLAC) have brought High Court proceedings challenging the Minister's decision.
It is claimed that the Minister’s refusal and the contents of the Act amount to a discrimination against both Mr O’Meara and the couple’s three children.
The Act treats them less favourably than surviving family members in a similar situation from a marriage or a civil partnership, it is claimed.
This treatment of Mr O’Meara and his children is incompatible with the State’s obligations under the European Convention on Human Rights, and is unconstitutional, it is also submitted
In their judicial review proceedings against the Minister for Social Protection, Ireland and the Attorney General the family seeks various orders and declarations including an order quashing the Minister's refusal to grant him the pension.
They also seek declarations that the sections of the 2005 Social Welfare Consolidation Act that prohibit him getting the pension in respect of his children are unconstitutional and in breach of their rights under the ECHR.
The matter came before Mr Justice Garrett Simons during Wednesday's vacation sitting of the High Court.
The judge, on an ex-parte basis, said he was satisfied to grant the permission to bring their challenge.
The judge made the matter returnable to a date in October, when the new legal term commences.