S.I. No. 269/1989 - Ombudsman (Spouses' and Children's) Contributory Pension Scheme, 1989.

S.I. No. 269 of 1989.

OMBUDSMAN (SPOUSES' AND CHILDREN'S) CONTRIBUTORY PENSION SCHEME, 1989.

I, ALBERT REYNOLDS, Minister for Finance, in exercise of the powers conferred on me by section 3 (2) of the Ombudsman Act, 1980 (No. 26 of 1980), and the Public Service (Transfer of Departmental Administration and Ministerial Functions) Order, 1987 ( S.I. No. 81 of 1987 ), hereby make the following scheme:

PRELIMINARY.

1. (1) This Scheme may be cited as the Ombudsman (Spouses' and Children's) Contributory Pension Scheme, 1989.

(2) The Principal Scheme and this Scheme shall be construed together as one.

2. This Scheme shall be deemed to have come into force on the 1st day of January, 1984.

3. (1) In this Scheme, unless the context otherwise requires—

"adopted" means adopted in pursuance of an adoption order made under the Adoption Acts, 1952 to 1976, or in accordance with the law of a country or territory other than the State and recognised by the law of the State as a valid adoption and reference to adoption by a person include references to adoption jointly by the person and another person, and cognate words shall be construed accordingly;

"child", in relation to the deceased, means, subject to paragraphs (2) and (3) of this Article, a child or step-child of the deceased, or a person adopted by the deceased who—

( a ) is under the age of 16 years,

( b ) is under the age of 21 years and is receiving fulltime instruction at any university, college, school or other educational establishment,

( c ) is under the age of 21 years and is undergoing fulltime instruction or training by a person (by whom he is employed) for any vocation, profession or trade, being instruction or training approved of by the Minister for the purposes of this Scheme, or

( d ) is permanently incapable by reason of mental or physical infirmity of maintaining himself and who when his permanent incapacity first occurred, was a person described in any of the preceding paragraphs of this definition;

"children's pension" has the meaning assigned to it by Article 4 of this Scheme;

"the deceased" has the meaning assigned to it by Article 4 of this Scheme;

"pension", in relation to the deceased, means—

( a ) in case, otherwise than on retirement from the office of Ombudsman on medical grounds, the deceased is awarded a pension under paragraph 4 of the Principal Scheme, that pension,

( b ) in case, on retirement from the office of Ombudsman on medical grounds, the deceased is awarded a pension under the said paragraph 4, the pension under the said paragraph 4 that would have been granted to him if it fell to be calculated by reference to—

(i) his pensionable remuneration at the date of retirement, and

(ii) the pensionable service which he would have had if he had held the office of Ombudsman until he reached the age of 67 years,

( c ) in case a preserved pension was in course of payment to the deceased, the preserved pension,

( d ) in case, having resigned from the office of Ombudsman with entitlement to a preserved pension, the deceased dies before attaining the age of 67 years or before applying for the preserved pension, a

pension of an annual amount equal to

where D is the number of years of his pensionable service at the date of his resignation, subject to a maximum of 15 years, and E is his pensionable remuneration at the date of his resignation, as increased by reference to increases of pension granted under paragraph 8 of the Principal Scheme during the period between the date of his resignation and the date of his death, and

( e ) in case the deceased dies while holding the office of Ombudsman, the pension for which he would be eligible if paragraph (b) of this definition applied to him;

"the Principal Scheme" means the Ombudsman Superannuation Scheme, 1987 ( S.I. No. 70 of 1987 );

"gratuity", "preserved pension", "pensionable allowances", "pensionable remuneration", "pensionable service", "preserved death gratuity", "preserved gratuity" and "salary" have the meanings respectively assigned to them by the Principal Scheme;

"retirement on medical grounds" means retirement in accordance with the conditions specified in paragraph 6 of the Principal Scheme;

"spouse's pension" has the meaning assigned to it by Article 4 of this Scheme.

(2) ( a ) Where, in relation to a person referred to in subparagraph (b) or (c) of the definition of "child" in paragraph (1) of this Article, an interruption occurs in his full-time instruction or training, then unless the Minister otherwise directs, he shall, for the duration of such interruption, be deemed to have ceased to be a child for the purposes of this Scheme.

( b ) The following persons shall not be regarded as children, namely:

(i) a person who was not wholly or mainly dependent on the deceased immediately before the latter's death,

(ii) a person who is married or is cohabiting with another person as husband or wife, or

(iii) a person specified in subparagraph (c) of the said definition of "child" to, or in respect of whom, emoluments in respect of the instruction or training referred to in that subparagraph are payable by or on behalf of the person providing the instruction or training and by reason of which the first mentioned person is self-supporting.

Provided that where, in the case of a person who, apart from the preceding provisions of this subparagraph would be a child, in the opinion of the Minister, there are compassionate grounds for so doing, the Minister may direct that, as on and from such date as may be specified in the direction, those provisions shall not apply in relation to the person and, whenever and for so long as a direction under this proviso in relation to a person is in force, the person shall be a child.

( c ) The Minister may by a direction amend or revoke a direction under this paragraph (including a direction under this subparagraph).

(3) Where a person who holds or has held the office of Ombudsman (referred to subsequently in this paragraph as the adoptor) and his spouse commence the procedure for the adoption of another person and the adoptor dies before the procedure is completed and that other person subsequently becomes adopted by the spouse of the adoptor, that other person shall be deemed, from the date on which the adoptor or the spouse first had custody of him to have been the adopted child of the adoptor.

4. On the death of a person (in this Scheme referred to as the deceased) to or in respect of whom a pension, a gratuity, under paragraph 4 (2) (b) of the Principal Scheme a preserved pension or a preserved death gratuity has been, or is, awarded, there shall, subject to the provisions of this Scheme and to compliance therewith by the deceased, be awarded and paid by the Minister—

( a ) where the deceased leaves a spouse surviving him, a pension to that spouse (hereafter referred to in this Scheme as a spouse's pension), and

( b ) where the deceased leaves a child or children surviving him (whether or not a spouse's pension is, or may be, awarded), a pension (referred to in this Scheme as a children's pension) for such child or each such child.

5. (1) A spouse's pension shall not be awarded or paid

( a ) if the spouse concerned was at the time of the death of the deceased concerned cohabiting with a person other than the deceased as husband and wife, or

( b ) in respect of any period after the death of the deceased concerned during which a marriage of the spouse concerned is subsisting or such spouse is so cohabiting as aforesaid.

(2) Notwithstanding paragraph (1) of this Article, where

( a ) by virtue of that paragraph, a pension under this Scheme is not awarded or ceases to be payable, and

( b ) at a date subsequent to the date of the marriage, or the commencement of the cohabitation, by reason of which the pension was not awarded or ceased to be payable, the Minister is satisfied that the marriage or cohabitation has ended, or that there are compassionate grounds for the payment of the pension, he may, if he thinks fit, award or, as may be appropriate, resume payment of the pension as from—

(i) in case the marriage or cohabitation has ended, the date on which the marriage or cohabitation ended,

(ii) in any other case, a date not earlier than the date on which an application for such payment or resumption is received by the Minister.

(3) Subject to paragraph (1) of this Article, a spouse's pension may be paid for the whole of the period beginning with the death of the deceased and ending with the death of the spouse.

(4) The annual amount of a spouse's pension shall be one-half of the annual amount of the pension under paragraph 4 of the Principal Scheme or the preserved pension that was or would have been payable to the deceased concerned.

(5) Notwithstanding paragraph (4) of this Article, where, on the death of the deceased concerned (not being a person who qualifies for a preserved pension), a spouse's pension becomes payable to his spouse, the amount of that pension may, in respect of the period of one month commencing on the day immediately following that of such death, be increased—

( a ) in case the death occurs while the deceased is holding the office of Ombudsman, to one twelfth of the annual amount of his pensionable remuneration,

( b ) in case the death occurs after the deceased has been awarded a pension under paragraph 4 of the Principal Scheme or a preserved pension and the annual amount of the pension so awarded to him payable on the date of his death is greater than the annual amount of the spouse's pension that would, apart from this paragraph, be payable to his spouse, to one-twelfth of the annual amount of the pension so awarded to him as aforesaid.

Provided that the amount aforesaid as to increased shall be reduced by the amount of any children's pensions payable during the month aforesaid in respect of children of the deceased:

Provided also that the amount of the spouses pension payable in respect of the period of one month aforesaid may be paid at any time during the period.

6. (1) A child shall not be eligible for more than one children's pension.

(2) Where, apart from this Article, a child would be eligible for more than one children's pension, there shall be awarded to, and paid in respect of, the child such one only of the pensions as will ensure the most favourable (overall) result as respects the amount of his children's pension.

7. (1) A children's pension shall be paid—

( a ) in case the child concerned is in the sole care of the spouse of the deceased concerned, to the spouse, and

( b ) in any other case, either, at the discretion of the Minister, to the child or to such other person or persons as the Minister may determine.

(2) Where a children's pension falls to be paid to more than one person, it shall be paid to the persons concerned in such proportions as the Minister may determine.

(3) Payments in respect of children's pension shall be applied for the benefit of the child to whom it was awarded.

(4) The annual amount of a children's pension shall be—

( a ) where the deceased concerned does not leave a spouse surviving him or after the death of a spouse who survived him—

( i ) at any time when there is one child only of the deceased, /_1/3 of the annual amount of the pension under paragraph 4 of the Principal Scheme or the preserved pension that was or would have been payable to the deceased under the Principal Scheme, and

(ii) at any time when there is more than one child of the deceased, an amount equal to F/G where F is ½ of the annual amount of the pension that was or would have been payable to the deceased as aforesaid and G is the number of children of the deceased,

and

( b ) subject to paragraph (4) of this Article, where the deceased leaves a spouse surviving him—

(i) at any time when there are not more than 3 children of the deceased, /_1/6 of the annual amount of the pension that was or would have been payable to the deceased as aforesaid, and

(ii) at any time when there are more than three children of the deceased, an amount equal to X/Y where X is ½ of the annual amount of the pension that was or would have been payable to the deceased as aforesaid and Y is the number of children of the deceased.

(5) ( a ) Where the children of the deceased are at the time of, or at any time after, his death in the care of a person other than his spouse, the Minister may, if he thinks fit, direct that during such period as may be specified in the direction, paragraph (4) (a) of this Article shall apply notwithstanding that the spouse is still alive and, when a direction under this paragraph is in force, this Article shall be construed and have effect in accordance with the direction.

( b ) Where one or more but not all of the children of the deceased are at the time of, or at any time after, his death in the case of a person other than his spouse, the amount of the children's pension that is payable in respect of a child who is in the care of that person may be calculated by reference to the amounts specified in paragraph (4) (a) of this Article:

Provided that the total of the amounts of children's pensions payable in respect of the deceased shall not exceed ½ the amount of the pension that was or would have been payable to the deceased as aforesaid.

(6) Notwithstanding the foregoing provisions of this Article, where the deceased leaves a spouse surviving him and a spouse's pension is not awarded to her or a spouse's pension is awarded to her and it ceases to be paid before her death, a children's pension shall not be payable as respects any period during the life of the spouse or, as the case may be, any period in respect of which a spouse's pension is not payable, unless the Minister in his absolute discretion directs that it shall be so payable, and in case the Minister gives a direction under this paragraph he may, if he thinks fit, further direct that paragraph (4) (a) of this Article shall apply as respects the pension.

8. Amounts payable in respect of pensions under this Scheme shall be paid monthly in arrear except that, in a case to which Article 5 (5) of this Scheme applies, the amount of the pension payable in respect of the period referred to in the said Article 5 (5) shall, if the Minister so directs, be paid on such date before the end of that period as may be specified in the direction.

CONTRIBUTIONS.

9. (1) Contributions shall be payable as follows to the Minister by a person who holds the office of Ombudsman:

( a ) the rate of the contributions shall be 4 per cent, of the amount of the remuneration from time to time payable to them or, where he is in receipt of reduced remuneration because of absence from employment, of the amount of the remuneration that would be payable to him if he were not so absent.

( b ) the contributions shall be paid in respect of his pay during the period of his tenure of the office of Ombudsman and at such times and in such manner as the Minister may determine.

(2) Contributions shall not be payable under this Scheme for any period which does not constitute pensionable service.

10. (1) If a person ceases other than on death to hold the office of Ombudsman and on so ceasing does not become eligible for the grant of a pension under paragraph 4 of the Principal Scheme, a preserved pension, a preserved gratuity or a preserved death gratuity, then, if this pensionable service is not reckonable for the purpose of superannuation benefits other than those under this Scheme or the Principal Scheme, the contributions paid by him under Article 9 of this Scheme shall be returned to him.

(2) Where a person who has paid contributions under this Scheme in respect of a period of more than 15 years ceases to hold the office of Ombudsman, the Minister shall repay to him or, where appropriate to his personal representative, the contributions paid under Article 9 of this Scheme in respect of so much of the period, starting at the beginning of the period as when added to the remainder of the period exceeds 15 years.

(3) Interest shall not be paid by the Minister on any contributions repaid under this Article.

11. (1) Subject to the provisions of this Article, where a person who was married during the whole or part of the period during which he held the office of Ombudsman ceases to hold that office, on death or on retirement or resignation with entitlement to a pension under paragraph 4 of the Principal Scheme or, as may be appropriate, a preserved pension, a contribution shall be paid by the person to the Minister of an amount equal to 2 2/3 per cent, of the person's pensionable remuneration in respect of each relevant year (of pensionable service) of the member not exceeding 15.

(2) A contribution under this Article shall be paid by a person by deduction from any payment falling to be made to him or to his personal representative under the Principal Scheme or in such other manner as the Minister may determine.

(3) Where a contribution under this Article falls to be deducted from a preserved gratuity or a preserved death gratuity pursuant to paragraph (2) of this Article, the amount of the contribution shall be increased by an amount proportionate to the amount of any increases of pensions under paragraph 8 of the Principal Scheme taking effect between the date on which the person concerned ceased to hold the office of Ombudsman and the date on which—

( a ) in case the deduction is from a preserved gratuity, he reached the age of 67 years, or

( b ) in case the deduction is from a preserved death gratuity, he dies.

(4) Where, subsequent to the date on which a person ceases to hold the office of Ombudsman, the pension under paragraph 4 of the Principal Scheme or the preserved pension payable to him falls to be increased otherwise than under paragraph 8 of the Principal Scheme, the Minister may increase the amount of the contribution payable by the person under this Article by an amount proportionate to the amount of the increase and the amount payable to the person by virtue of this paragraph shall be paid in such manner as the Minister may determine.

(5) A person may, at the discretion of the Minister and subject to any conditions specified by him elect to pay to the Minister in such manner and at such times as the Minister may specify a contribution in respect of a period of 12 months beginning on a date not earlier than the date of the election specified by the Minister a contribution equal to the amount of the contribution under Article 9 (1) of this Scheme paid by the person in respect of that period, and in respect of each contribution paid by a member the number of relevant years of the member shall be reduced for the purposes of paragraph (1) of this Article by one year.

(6) In calculating the amount of a gratuity payable in respect of a person under Article 4.2 (b) of the Principal Scheme, any deduction under this Article from the gratuity paid to the person shall be disregarded.

(7) ( a ) In this Article "relevant year" means—

(i) in the case of a person who, being then married, ceases to hold the office of Ombudsman—

(A) if such cesser is caused otherwise than by death or retirement on medical grounds, the number of years of pensionable service which he then had,

(B) if such cesser is due to death or to retirement on medical grounds, the number of years of pensionable service which he would have had if he had held the office of Ombudsman until he reached the age of 67 years,

reduced in each case by the number of years, if any—

(I) in respect of which contributions have been paid by the person under Article 9 of this Scheme and are not repayable to him, or

(II) that are reckonable under (b) of the definition of "pensionable service" in paragraph 3 of the Principal Scheme,

and

(ii) in the case of a person who, having been married but being then unmarried, ceases to hold the office of Ombudsman, the number of years of reckonable service which he had on the date of the termination of his last marriage before such cesser, reduced in each case by the number of years, if any—

(I) for which periodic contributions have been paid by him and are not returnable, or

(II) that are reckonable under (b) of the definition of "pensionable service" in paragraph 3 of the Principal Scheme.

( b ) In calculating the number of relevant years of a person, any period of service in an office (other than that of Ombudsman) or employment that was remunerated out of the Central Fund or moneys provided by the Oireachtas, being service in respect of which he paid contributions under a scheme or arrangement corresponding to this Scheme, shall be disregarded if the contributions were not refunded to him subsequently.

MISCELLANEOUS.

12. Where a person who holds the office of Ombudsman is married and—

( a ) he dies during the period of 12 months beginning on the date of the marriage,

( b ) there are no children of the marriage, and

( c ) the Minister considers that the person or his spouse was, or ought reasonably to have been, aware that the death of the person within the period aforesaid was likely, the marriage may, for the purposes of this Scheme, be regarded by the Minister as not having taken place, and, in case the marriage is so regarded, all appropriate adjustments (including, if need be, repayment to the Minister of amounts paid to the spouse in respect of a pension under this Scheme and repayments by the Minister of contributions made by the person to the Minister under this Scheme), shall be made accordingly.

13. (1) A person who holds the office of Ombudsman and the spouse, the personal representative, and a person having the care of a child, of a deceased former holder of that office shall give to the Minister such information as is, in the opinion of the Minister, reasonably necessary for the purposes of this Scheme.

(2) Payments in respect of pensions under this Scheme shall be subject to the making by the spouse concerned and, where a children's pension is payable to a person other than the spouse of the deceased, the person to whom it is payable of a declaration in such form and at such times as the Minister may determine.

14. If at any time a person receives, in respect of a pension under this Scheme, a payment to which he is not entitled or a payment of an amount in excess of that to which he is entitled, the person, or if he is dead, his personal representative shall pay the amount of the payment or the excess, as the case may be, to the Minister on demand and the amount of the payment or excess, as the case may be, may, in default of payment to the Minister as aforesaid, be recovered by him as a simple contract debt in a court of competent jurisdiction.

15. Every assignment of or change on, and every agreement to assign or charge, a pension under this Scheme shall be void and on the bankruptcy of any person entitled to such a pension, the pension shall not pass to any trustee or other person acting on behalf of the creditors. If the person to whom a pension under this Scheme is awarded is incapable of giving a receipt for payment in respect thereof, the Minister shall have discretion to make such payments in whole or in part to such persons, including the persons in charge of any institution in whose care the pensioner is, as the Minister thinks fit, and the Minister shall be discharged from all liability in respect of any sum so paid.

16. (1) Where, either directly or indirectly, the Minister provides, or helps to provide, or contributes towards, a financial benefit payable in respect of the death of a person who holds or held the office of Ombudsman other than under—

( a ) this Scheme,

( b ) the Principal Scheme,

( c ) the Social Welfare Acts, 1981 to 1987, or

( d ) the Social Welfare (Occupational Injuries) Act, 1966 ,

the Minister may refrain from awarding a pension under this Scheme in respect of the person or may reduce the amount of any pension so awarded so as to take such account as he considers appropriate of the benefit in question.

(2) Where, pursuant to paragraph (1) of this Article, an award is not made under this Scheme, the contributions paid by the person concerned under this Scheme shall be repaid by the Minister to the personal representative of the person and Article 11 of this Scheme shall not apply in his case.

(3) Where, pursuant to the said paragraph (1), the amount of a pension is adjusted, such proportion of the contributions paid by the person concerned under this Scheme as the Minister may determine shall be repaid by him to the personal representative of the person and such reduction as the Minister may determine shall be made in any contribution payable under the said Article 11.

17. Pensions under this Scheme shall be increased by such amounts as may be authorised, from time to time by the Minister.

18. A pension awarded under this Scheme shall cease to be payable if the person to whom it is awarded is convicted on indictment of an offence and is sentenced to penal servitude, or to any term of imprisonment exceeding 12 months; but the Minister may at any time, if he thinks proper, restore the pension either in whole or in part.

19. If any dispute arises as to the claim of any person to, or the amount of, any pension payable under this Scheme, the dispute shall be submitted to the Minister whose decision thereon shall be final.

GIVEN under my Official Seal, this 5th day of October, 1989.

ALBERT REYNOLDS,

Minister for Finance.

EXPLANATORY NOTE.

This Scheme provides spouses' and children's pensions for the holder of the Office of Ombudsman.