The Equality Authority has welcomed a decision by the Irish government today to compensate a gay man for taking unpaid leave from his job to care for his partner.
The equal rights group called it an “important recognition” for same sex couples in the Republic of Ireland, after the unnamed claimant won his case under the Equal Status Act.
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 said he hoped it would bring benefits to other same sex couples, “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, chief executive of the Equality Authority, said it shows the importance of recognition for same sex couples in Ireland, “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.”