S.I. No. 4/1978 - Widows' and Children's (Miscellaneous Offices) Ex Gratia Pension Scheme, 1978.

S.I. No. 4 of 1978.

WIDOWS' AND CHILDREN'S (MISCELLANEOUS OFFICES) EX GRATIA PENSION SCHEME, 1978.

I, SEOIRSE Ó COLLA, Minister for the Public Service, in exercise of the powers conferred on me by section 2 of the Superannuation and Pensions Act, 1976 (No. 22 of 1976), hereby make the following scheme:

1 Short title.

1. This Scheme may be cited as the Widows' and Children's (Miscellaneous Offices) Ex Gratia Pension Scheme, 1978.

2 Commencement.

2. This Scheme shall be deemed to have come into force on the 1st day of October, 1969.

3 Interpretation.

3. (1) In this Scheme—

"adoption order" means an adoption order made under the Adoption Act, 1952 (No. 25 of 1952);

"child", subject to paragraph (2) (b) of this Article, means a legitimate or lawfully adopted person who is,

( a ) a person under sixteen years of age, or

( b ) a person under the age of twenty-one years of age and is receiving full-time instruction at any university, college, school or other educational establishment, or

( c ) a person under the age of twenty-one years of age and is undergoing full-time instruction or training by any person (in this Scheme referred to as "the employer") for any vocation, profession or trade, being instruction or training approved of by the Minister for the purposes of this Scheme, or

( d ) a person who is permanently incapacitated by reason of mental or physical infirmity from maintaining himself and who when his permanent incapacity first occurred was a person described in any of the foregoing paragraphs of this definition, provided that in case the person reaches the age of twenty-one years prior to the 1st day of June, 1973, this definition shall not apply to him during the period beginning on the day on which he reaches that age and ending on the 31st day of May, 1973;

"children's pension" has the meaning assigned to it by Article 5;

"death gratuity" means a gratuity payable on death by virtue of the superannuation and pensions terms applicable to the officer in respect of his office;

"the deceased" has the meaning assigned to it by Article 5;

"deceased's pension", subject to paragraph (4) of this Article, means,

( a ) in case he either transferred to approved employment in accordance with section 4 of the Superannuation Act, 1914, or retired on pension other than on a medical certificate, the amount of such pension,

( b ) in case, having given at least five and not more than ten years' reckonable service, he retired on a medical certificate,

(i) in respect of the period ending on the 31st day of May, 1973, an amount equivalent to one-eightieth of his pensionable remuneration for each completed year of reckonable service, and

(ii) in respect of the period subsequent to the said 31st day of May, the pension which would have been awarded to him if, on the date of retirement, he had the reckonable service which he would have had if he had served to retiring age,

( c ) in case he dies while serving as an officer having given at least five years' reckonable service, the pension which would have been granted to him if, on the date of death, he retired on a medical certificate and then had the reckonable service he would have had if he had served to retiring age,

( d ) in case he retired on a medical certificate and was awarded a pension, with effect from the 1st day of June, 1973, the pension which would be granted to him if he then had the reckonable service he would have had if he had served to retiring age;

"employer" has the meaning assigned to it by this Article;

"lump sum" means:

( a ) in relation to an officer whose pension, short service gratuity or death gratuity in respect of his office is paid under the Superannuation Acts, an additional allowance granted under those Acts, or any of those Acts, and includes an allowance, other than an annual allowance, under section 6 of the Superannuation Act, 1909;

( b ) in relation to an officer whose pension or death gratuity is not paid under the Superannuation Acts, a payment (other than an annual payment) on retirement by virtue of the superannuation terms applicable to the officer in respect of his office, including a lump-sum payable by virtue of section 28 (4) of the Finance (Miscellaneous Provisions) Act, 1968 (No. 7 of 1968), or a lump-sum on retirement payable under a scheme made by the Minister under section 2 of the Superannuation and Pensions Act, 1976 (No. 22 of 1976);

"medical certificate" means, in relation to the retirement of any officer, a medical certificate having regard to which the Minister is satisfied that the officer to whom the certificate relates is incapable from infirmity of mind or body of discharging the duties of his office and that that infirmity is likely to be permanent;

"the Minister", subject to paragraph (5) of this Article, means the Minister for the Public Service;

"officer" means a male person who—

( a ) is an Appeal Commissioner for the purposes of the Income Tax Acts to whom section 28 of the Finance (Miscellaneous Provisions) Act, 1968 , applies,

( b ) is a member of the staff of the Houses of the Oireachtas within the meaning of section 2 of the staff of the Houses of the Oireachtas Act, 1959 (No. 38 of 1959),

( c ) holds the office of Comptroller and Auditor General who at any time before being appointed to that office was an established civil servant and who makes an election under section 2 of the Comptroller and Auditor General (Amendment) Act, 1944 (No. 19 of 1944),

( d ) is a Commissioner of the Irish Land Commission appointed pursuant to section 4 of the Land Law (Commission) Act, 1923 (No. 27 of 1923),

( e ) is an officer or servant appointed pursuant to section 13 of the National Gallery of Ireland Act, 1854,

( f ) is a person appointed pursuant to section 2 (1) of the Property Values (Arbitrations and Appeals) Act, 1960 (No. 45 of 1960), to be a property arbitrator;

"pension" means:

( a ) in relation to an officer whose pension, short-service gratuity or death gratuity in respect of his office is paid under the Superannuation Acts, an annual allowance granted under those Acts, or any of those Acts, other than an annual allowance under the Superannuation Act, 1877 (Section 1) Warrant, 1946 (S.R., and O. No. 236 of 1946), and includes an allowance under the Superannuation Act, 1887 (Section 1) and an annual allowance under section 6 of the Superannuation Act, 1909;

( b ) in relation to an officer whose pension or death gratuity in respect of his office is paid otherwise than under the Superannuation Acts, an annual payment payable on retirement by virtue of the superannuation terms applicable to the officer in respect of his office, including a pension payable by virtue of section 28 (3) of the Finance (Miscellaneous Provisions) Act, 1968 , or a pension on retirement payable under a scheme made by the Minister under section 2 of the Superannuation and Pensions Act, 1976 ;

"pensionable emoluments" means the annual amount of any emoluments (in addition to pensionable pay) reckonable in calculating a pension, lump sum, death gratuity or short service gratuity of an officer to whom this Scheme applies;

"pensionable pay" means the annual amount which, together with any pensionable emoluments, is reckonable in calculating a pension, lump sum, death gratuity or short service gratuity of an officer to whom this Scheme applies;

"pensionable remuneration" means the aggregate of pensionable emoluments and pensionable pay;

"reckonable service" means service as computed in accordance with the enactments relating to the computation of service for the purpose of determining the amount of a pension or lump sum;

"retiring age" means seventy years of age in the case of an officer holding the office of Comptroller and Auditor General, sixty-seven years of age in the case of an officer who is a Commissioner of the Irish Land Commission appointed pursuant to section 4 of the Land Law (Commission) Act, 1923 , and sixty-five years of age in the case of any other officer;

"short service gratuity" means a gratuity under section 6 of the Superannuation Act, 1859;

"the Superannuation Acts" means the Superannuation Acts, 1834 to 1963;

"widow's pension" has the meaning assigned to it by Article 5.

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

( b ) The following shall not be regarded as a child within the meaning of this Scheme, namely:

(i) a person who was not wholly or mainly dependent on an officer in respect of whom this Scheme applies immediately prior to the officer's death,

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

(iii) a person referred to in paragraph (c) of the said definition of "child" to, or in respect of whom, emoluments in respect of such instruction or training are payable by, or on behalf of, the employer and which are of such an amount as makes the person self-supporting;

provided that if there are compassionate grounds for so doing, the Minister may as regards a person who apart from this sub-paragraph would be such a child direct that notwithstanding this sub-paragraph the person shall, with effect from such date as is specified in the direction, be regarded as being such a child and in case the Minister makes a direction under this sub-paragraph then for so long as the direction is in force this Scheme shall, as regards the person to whom the direction relates, be construed and have effect in accordance with the direction.

(3) ( a ) Any reference in this Scheme to an adopted child of the deceased shall be construed as a reference to a child adopted by him (whether alone or jointly with any other person) either in pursuance of an adoption order or in accordance with the law of a country or territory other than the State and recognised by the law of the State as valid, and references to lawfully adopted or to a person by whom another person has been adopted shall be construed accordingly.

( b ) Where a married officer (being an officer to whom this Scheme applies) applies before the termination of his reckonable service for an adoption order in respect of a child and dies before the adoption procedure is completed and the child is subsequently adopted by his widow, the child shall, from the date on which he has custody of him, be deemed, for the purposes of this Scheme, to be the officer's duly adopted child.

(4) Where a pension only, and not a pension and lump sum, was awarded to an officer in respect of his office, then in applying this Scheme in respect of him the amount of the deceased's pension shall be reduced by one quarter.

(5) In relation to the period commencing on the 1st day of October, 1969, and ending on the 31st day of October, 1973, references in this Scheme to the Minister shall be construed as references to the Minister for Finance.

4 Application of Scheme.

4. This Scheme applies to an officer who, prior to the 23rd day of July, 1968,

( a ) retired on pension, or

( b ) retired on a medical certificate having given at least five and not more than ten years' reckonable service, or

( c ) died while he was an officer having given at least five years' reckonable service, and who—

(i) was, at the date of death, giving reckonable service, or

(ii) had a death gratuity awarded in respect of him.

5 Power to grant widows' and children's pensions.

5. Subject to the provisions of this Scheme, where, whether before or after the commencement hereof, an officer to whom this Scheme applies dies (in this Scheme referred to as "the deceased"), and such officer is a person,

( a ) to or in respect of whom a pension or death gratuity, or if he retired on a medical certificate having given at least five and not more than ten years' reckonable service, a short service gratuity, has been, or is, awarded, or

( b ) who, having given at least five years' reckonable service, dies while giving reckonable service,

the Minister may, with effect from the date of the deceased's death or the 1st day of October, 1969, whichever is the later, grant, in respect of his service—

( c ) where he leaves a widow, a pension to that widow (hereafter in this Scheme referred to as a "widow's pension"),

( d ) where he had a wife at any time before his reckonable service ceased (whether or not the marriage continued until his death and whether or not a widow's pension is, or can be, granted), a pension for the children of the marriage, and, in the circumstances specified in this Scheme, for other children of his (in this Scheme referred to as a "children's pension");

provided that any marriage of the deceased which takes place after he has ceased to give reckonable service shall not be taken into account for the purposes of this Scheme, and, accordingly, any reference to a marriage, a wife, the widow or the children of the deceased shall be construed in accordance with the foregoing.

6 Widows' pensions.

6. (1) A widow's pension shall not be granted or paid under this Scheme—

( a ) if the widow was at the time of the death of the deceased cohabiting with a man other than the deceased as man and wife, or

( b ) in respect of any time after the said death when the widow is remarried or is so cohabiting with any man.

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

( a ) a pension under this Scheme is not granted or ceases under the said paragraph (1), and

( b ) at a subsequent date to the date of the marriage or cohabitation by reason of which the pension was withheld or ceased the Minister is satisfied that the marriage or cohabitation has come to an end, or that there are compassionate grounds for the payment of pension, he may, if he thinks fit, grant or regrant, as may be appropriate, the pension as from,

(i) in case the marriage or cohabitation has come to an end, the date on which the marriage or cohabitation ended,

(ii) in any other case, a date not earlier than the date on which the relevant application is received by the Minister.

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

(4) ( a ) During the period beginning on the commencement of this Scheme and ending on the 30th day of June, 1977, the rate of a widow's pension may not exceed one-quarter of the rate of the deceased's pension.

( b ) As on and from the 1st day of July, 1977, the rate of a widow's pension may not exceed one-third of the rate of the deceased's pension.

7 Children's pensions; beneficiaries.

7. (1) A pension may not be granted under this Scheme for a child

( a ) if the deceased remained unmarried during the period of his reckonable service, or

( b ) if the child was conceived after the deceased ceased to give reckonable service, or

( c ) because he is the adopted child of the deceased, where—

(i) the deceased was unmarried throughout his reckonable service, or

(ii) the child was adopted by the deceased after,

(A) the date of termination of the deceased's last marriage, or

(B) the date on which the deceased ceased to give reckonable service,

whichever was the earlier.

(2) A pension may not be granted under this Scheme for a child who is,

( a ) the step-child of the deceased, or

( b ) the step-child, adopted child or child of a wife of the deceased and who is not the child or adopted child of the deceased.

(3) A child shall not be eligible for a children's pension in respect of more than one officer. Where there would, apart from this paragraph, be an eligibility for children's pension in respect of two or more officers, the child will count as eligible in respect of one of them in the way which, in the opinion of the Minister, gives the most favourable overall result for the child or children in question.

8 Children's pensions; rate and mode of payment.

8. (1) A children's pension under this Scheme will be paid to the deceased's widow if the eligible children are in her care, and in case any child in respect of whom the pension is payable is not in such care, the pension will be paid either to the child or to such other person as the Minister may determine. If the children are in the care of more than one person different parts of the children's pension will be paid to those persons in such proportions as the Minister may determine. In all cases, the pension is to be applied for the benefit of the children for whom it is granted.

(2) A children's pension may only be paid in relation to a period subsequent to the death of the deceased.

(3) During the period beginning on the commencement of this Scheme and ending on the 31st day of May, 1973, the rate of children's pension under this Scheme may not exceed,

( a ) where the deceased leaves no widow, or if he leaves no widow and the widow dies then after her death, two twenty-fourths of the deceased's pension for the first child plus one twenty-fourth for each additional child up to a fourth additional child,

( b ) subject to paragraph (5) of this Article, where the deceased leaves a widow, one twenty-fourth of the deceased's pension for the first child plus one twenty-fourth for each additional child up to a fifth additional child.

(4) ( a ) During the period beginning on the 1st day of June, 1973, and ending on the 30th day of June, 1977, the rate of children's pension under this Scheme may not exceed,

(i) where the deceased leaves no widow, or if he leaves a widow and the widow dies then after her death, four twenty-fourths of the deceased's pension for the first child plus two twenty-fourths for a second child,

(ii) subject to paragraph (5) of this Article, where the deceased leaves a widow, two twenty-fourths of the deceased's pension for the first child plus two twenty-fourths for each additional child up to a second additional child.

( b ) As on and from the 1st day of July, 1977, the rate of children's pension under this Scheme may not exceed,

(i) where the deceased leaves no widow, or if he leaves a widow and the widow dies then after her death, two-ninths of the deceased's pension for the first child plus one-ninth for a second child,

(ii) subject to paragraph (5) of this Article, where the deceased leaves a widow, one-ninth of the deceased's pension for the first child plus one-ninth for each additional child up to a second additional child.

(5) ( a ) Where the children of the deceased are at the time of, or at any time after, his death, in the care of some person other than his widow, the Minister may, if he thinks fit, direct that for so long as they are in such care any or all, as may be appropriate, the following paragraphs of this Article, namely, paragraph (3) (a), (4) (a) (i) and (4) (b) (i) shall apply notwithstanding that the widow is still alive, and in case the Minister so directs this Article shall be construed and shall have effect in accordance with the direction.

( b ) Where some but not all of 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 widow, the rate of that portion of the children's pension which is payable in respect of the children who are in the care of that person may be calculated by reference to all or any, as may be appropriate, of the following rates, namely, those specified in paragraph (3) (a), (4) (a) (i) or (4) (b) (i) of this Article: provided that the amount of children's pension payable in respect of a deceased shall not exceed,

(i) during the period beginning on the commencement of this Scheme and ending on the 30th day of June, 1977, one-quarter of the rate of the deceased's pension,

(ii) as on and from the 1st day of July, 1977, one-third of the last-mentioned rate.

(6) Notwithstanding the foregoing provisions of this Article, where the deceased leaves a widow and no widow's pension is granted to her under this Scheme or, if one is so granted to her and it ceases to be paid before her death, no children's pension shall be payable under this Scheme as respects any period comprised within the life-time of the widow or within the time in respect of which no widow's pension is payable, as may be appropriate, unless the Minister in his absolute discretion directs that such a pension 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 (5) of this Article shall apply as respects any such period.

9 Allocations under the Superannuation Act, 1956 , not to affect rights under Scheme.

9. The fact that the Superannuation Act, 1956 , (which enables the partial allocation of pensions to wives and dependants) or any other enactment which so enables, applies to an officer to whom this Scheme applies shall not affect his rights under this Scheme and the pensions payable under this Scheme in respect of the service of such an officer shall be calculated as if any surrender under that Act of a part of a pension had not been made.

10 Duty to give information.

10. (1) An officer to whom this Scheme applies shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to him.

(2) The widow of a deceased shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to her or any children of the deceased.

(3) A person having the care of a child of the deceased shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to that child.

11 Repayment of pensions overpaid.

11. If at any time a person receives payments on foot of a pension and such person is not entitled under this Scheme to such payments, or if a person receives payments on foot of a pension which exceed those which are appropriate under this Scheme, such person or, in case such a person is dead, the personal representative of such person, shall pay to the Minister on demand such payments or excess payments, as may be appropriate, and such payments or excess payments shall in default of payment be recoverable by the Minister as a simple contract debt in any court of competent jurisdiction.

12 Pensions to be inalienable.

12. Every assignment of or charge on, and every agreement to assign or charge, a pension shall be void and on the bankruptcy of any person entitled to a pension the pension shall not pass to any trustee or other person acting on behalf of the creditors.

GIVEN under my Official Seal, this 12th day of January, 1978.

SEOIRSE Ó COLLA,

Minister for the Public Service.

EXPLANATORY NOTE.

This Scheme provides pensions for the widows and children of persons who ceased to hold certain miscellaneous offices prior to 23 July, 1968.