S.I. No. 319/1984 - Local Government Employees (Widows and Orphans Ex-Gratia Pension) Scheme, 1984.

S.I. No. 319 of 1984.

LOCAL GOVERNMENT EMPLOYEES (WIDOWS AND ORPHANS EX-GRATIA PENSION) SCHEME, 1984.

The Minister for the Environment, in exercise of the power conferred on him by sections 2 and 5 of the Local Government (Superannuation) Act, 1980 (No. 8 of 1980), with the consent of the Minister for the Public Service, hereby makes the following Scheme:

1 Short Title.

1. This Scheme may be cited as the Local Government Employees (Widows and Orphans Ex-Gratia Pension) Scheme, 1984.

2 Commencement.

2. This Scheme shall be deemed to have come into force on the 27th day of May, 1977.

3 Interpretation.

3. (1) In this Scheme—

"the Act of 1945" means the Mental Treatment Act, 1945 (No. 19 of 1945);

"the Act of 1956" means the Local Government (Superannuation) Act, 1956 (No. 10 of 1956);

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

"child", subject to sub-article (4)(b), means,

( a ) (i) a legitimate child of the deceased or a person lawfully adopted by the deceased, and

(ii) with effect from the 1st day of January, 1979, a step-child of the deceased,

who is

(I) under sixteen years of age, or

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

(III) under the age of twenty-one years 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, and

( b ) includes 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 paragraph (a) of this definition;

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

"death gratuity" means a death gratuity payable to the legal personal representative of a deceased pensionable servant under the Act of 1956 or under any earlier Act relating to superannuation as may have applied to him or under the Act of 1945 or under any earlier Act relating to superannuation as may have applied to him;

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

"the deceased's pension", subject to sub-article (5), means,

( a ) where, otherwise than on retirement because of permanent infirmity of mind or body, he was awarded a pension, such pension,

( b ) where he retired because of permanent infirmity of mind or body and was awarded a pension or, having given at least five and less than ten years' reckonable service, was awarded a short service gratuity, the pension which would have been granted to him if he then had the pensionable local service which he would have had if he had served to age 65,

( c ) where he died while serving as a pensionable servant 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 because of permanent infirmity of mind or body and then had the pensionable local service which he would have had if he had served to age 65;

"fully insured" means insured for all benefits under the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981);

"local authority" shall have the meaning assigned to it by section I of the Local Government (Superannuation) Act, 1980 (No. 8 of 1980) and, in addition, shall include a body within the meaning of section 2(9) of that Act;

"the Minister" means the Minister for the Environment;

"net pensionable remuneration" means the amount by which pensionable remuneration exceeds twice the personal weekly rate of old age contributory pension;

"pension" means an allowance payable to a pensionable servant under the Act of 1956 or under any earlier Act relating to superannuation as may have applied to him or under the Act of 1945 or under any earlier Act relating to superannuation as may have applied to him;

"pensionable local service" has the meaning assigned to it by section 35 of the Act of 1956 in relation to a pensionable servant other than a pensionable servant described in paragraph (b)(i), (b)(ii) or (b)(iii) of the definition of "pensionable servant"; in relation to such a pensionable servant it shall mean service which is reckonable for the purposes of section 82 of the Act of 1945 together with, in the case of a registered mental hospital servant whose service for the purposes of the said section 82 is twenty-one or more completed years, the number of such completed years in excess of twenty;

"pensionable servant" has the meaning assigned to it by section 2 of the Act of 1956 and, in addition, includes,

( a ) (i) an established servant for the purposes of the Local Government (Superannuation) Act, 1948 (No. 4 of 1948),

(ii) an employee as respects whom an allowance was payable under the provisions of the Local Government Act, 1925 (No. 5 of 1925), by virtue of section 53 of that Act, and

(iii) a person corresponding to a person referred to in subparagraph (i) or (ii) for the purposes of such Act passed before the Local Government Act, 1925 and relating to superannuation as may have applied to him,

( b ) (i) a servant to whom Part VIII of the Act of 1945 applied,

(ii) an established servant for the purposes of the Asylum Officers' Superannuation Act, 1909, and

(iii) a person corresponding to a person referred to in subparagraph (i) or (ii) for the purposes of such Act passed before the Asylum Officers' Superannuation Act, 1909 and relating to superannuation as may have applied to him;

"pensionable remuneration" means an amount by reference to which a pension is determined;

"the Pension Schemes of 1984" means,

( a ) the Local Government Employees (Widows and Orphans Contributory Pension) Scheme, 1984 ( S.I. No. 318 of 1984 ),

( b ) the Local Government Officers (Widows and Orphans Contributory Pension) Scheme, 1984 ( S.I. No. 321 of 1984 ), and

( c ) the Local Government Officers (Widows and Orphans Ex-Gratia Pension) Scheme, 1984 ( S.I. No. 320 of 1984 );

"personal weekly rate of old age contributory pension" means the old age (contributory) pension payable in the case of a person under eighty years at the rate set out in column (2) of Part I of the Second Schedule to the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981);

"reckonable service" has the same meaning as "pensionable local service" save that any increased period of pensionable local service under section 35(2) of the Act of 1956 or in excess of twenty years under the definition of "pensionable local service" shall be disregarded;

"registered mental hospital servant" means a pensionable servant whose name at cesser of employment was entered in a register maintained under section 65 of the Act of 1945 and includes a pensionable servant who at cesser of employment was a servant of the first class for the purposes of the Asylum Officers' Superannuation Act, 1909, or for the purposes of any earlier Act relating to superannuation as may have applied to him;

"short service gratuity" means a gratuity granted to a pensionable servant under section 39 of the Act of 1956, or under section 52 of the Local Government (Superannuation) Act, 1948 , or such a gratuity under any earlier Act relating to superannuation as may have applied to him and includes a lump sum under section 71 of the Act of 1945, a gratuity or special allowance under section 2(4) of the Asylum Officers' Superannuation Act, 1909 or such a lump sum, gratuity or special allowance under any earlier Act relating to superannuation as may have applied to him;

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

(2) In this Scheme any reference to an article which is not otherwise identified is a reference to an article of this Scheme.

(3) In this Scheme any reference to a sub-article, paragraph or subparagraph which is not otherwise identified is a reference to the sub-article, paragraph or subparagraph of the provision in which the reference occurs.

(4) ( a ) Where, in relation to a person referred to in clause (II) or (III) of paragraph (a) of the definition of "child" in sub-article (1), a break occurs in his full-time instruction or training, then, 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 a pensionable servant to whom this Scheme applies immediately prior to the pensionable servant's death,

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

(iii) a person referred to in clause (III) of paragraph (a) of the said definition of "child" to whom, 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 in the opinion of the Minister, either generally, or in a particular case, as makes the person self-supporting,

provided that if there are compassionate grounds for so doing, the Minister may on the application of the local authority as respects a person who apart from this paragraph would be such a child direct that notwithstanding this 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 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.

(5) ( a ) Where "the deceased's pension" is being determined by reference to paragraph (b) or (c) of the definition of "the deceased's pension", the pension in respect of that part of the pensionable local service which is pensionable local service which the deceased would have given on or after the 27th day of May, 1977 or which the deceased would have been credited with in respect of service given on or after the 27th day of May, 1977 shall, in the case of a pensionable servant who was fully insured, be calculated by reference to his net pensionable remuneration.

( b ) In determining "the deceased's pension" by reference to paragraph (b) of the definition of "the deceased's pension" account shall not be taken of any period of pensionable local service which an employee would have had from the date of his retirement if he had served to age 65 where any such period is reckoned under any other Scheme or Act for the provision of widows' or children's pensions by a body service in which is capable of being reckoned for the purposes of the Act of 1956 or the Local Government (Superannuation Revision) Scheme, 1984 ( S.I. No. 33 of 1984 ).

( c ) In case a pensionable servant to whom this Scheme applies was awarded a pension based on fiftieths of pensionable remuneration, then in applying this Scheme in respect of him the amount of the deceased's pension shall be reduced by three-eighths.

( d ) In case a pensionable servant to whom this Scheme applies was awarded a pension based on sixtieths of pensionable remuneration, then in applying this Scheme in respect of him the amount of the deceased's pension shall be reduced by one-quarter.

( e ) Where, subsequent to the date on which a person ceases to be a pensionable servant, the pension payable to him falls to be increased otherwise than in accordance with the Pensions (Increase) Act, 1964 (No. 10 of 1964) and regulations thereunder, or would, were he alive, fall to be so increased from a particular date, such increase shall be taken into account for the purpose of determining the deceased's pension in accordance with the definition of "the deceased's pension" in sub-article (1) from such date or from the date of commencement of payment of a widow's pension or children's pension in respect of him under this Scheme, whichever is the later.

(6) ( 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 pensionable servant to whom this Scheme applies who is married applies, before the termination of his pensionable local 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 the pensionable servant has custody of him, be deemed, for the purposes of this Scheme, to be his duly adopted child.

4 Pensionable servants to whom Scheme applies.

4. This Scheme applies in respect of any male pensionable servant who, prior to the 27th day of May, 1977,

( a ) retired on pension, or

( b ) retired because of permanent infirmity of mind or body and, having given at least five and less than ten years' reckonable service, was awarded a short service gratuity, or

( c ) died while he was a pensionable servant having given at least five years' reckonable service, and

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

(ii) in respect of whom a death gratuity was awarded.

5 Power to grant Widow's and Children's pensions.

5. (1) Subject to the provisions of this Scheme, where, before or after the commencement of this Scheme, a pension able servant in respect of whom this Scheme applies has died (in this Scheme referred to as "the deceased"), and

( a ) a pension has been awarded to him, or

( b ) having given at least five years' reckonable service—

(i) he has died while giving reckonable service, or

(ii) a death gratuity has been awarded in respect of him, or

( c ) having retired because of permanent infirmity of mind or body and having given at least five and less than ten years' reckonable service a short service gratuity has been awarded to or in respect of him,

the local authority may grant in respect of his pensionable local service—

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

( e ) where he had a wife at any time within the period of his reckonable service (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 be a pensionable servant 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.

(2) A pension granted under sub-article (1) shall commence with effect from the date of the deceased's death or the 27th day of May, 1977, whichever is the later.

6 Widow's pensions.

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

( a ) where 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 sub-article (1), where—

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

( b ) at a date subsequent to the marriage or cohabitation by reason of which the pension was withheld or ceased the relevant local authority, on application received from, or on behalf of, the widow of the deceased, is satisfied that the marriage or cohabitation has come to an end, or that there are compassionate grounds for the payment of pension, such local authority may, if it thinks fit, and subject to the approval of the Minister, 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 local authority.

(3) ( a ) A widow shall not be eligible for a widow's pension under this Scheme in respect of more than one pensionable servant; where a widow would, apart from this article, be eligible for a widow's pension in respect of two or more pensionable servants the widow shall be treated under this Scheme in the way which will give the most favourable result for the widow.

( b ) A widow shall not be eligible for a widow's pension under this Scheme where she is eligible for a more favourable widow's pension under the Pension Schemes of 1984.

(4) Subject to sub-article (1) and to article 5(2), 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.

(5) ( 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 ) During the period beginning on the 1st day of July, 1977 and ending on the 30th day of June, 1979, the rate of a widow's pension may not exceed one-third of the rate of the deceased's pension.

( c ) As of and from the 1st day of July, 1979, the rate of a widow's pension may not exceed five-twelfths of the rate of the deceased's pension.

7 Children's pensions; beneficiaries.

7. (1) A children's pension may not be granted under this Scheme in respect of a child,

( a ) where the deceased remained unmarried during the period while he was a pensionable servant, or

( b ) where the child was born more than ten months after the deceased ceased to be a pensionable servant, or

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

(i) the deceased remained unmarried during the period while he was a pensionable servant, or

(ii) the child was adopted by the deceased after

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

(II) the date on which the deceased ceased to be a pensionable servant, or

( d ) where he is the step-child of the deceased and the deceased's marriage to the child's mother took place after the deceased's last day of reckonable service.

(2) ( a ) A child shall not be eligible for a children's pension under this Scheme in respect of more than one pensionable servant; where a child would, apart from this sub-article, be eligible for a children's pension in respect of two or more pensionable servants, the child shall be treated under this Scheme in the way which will give the most favourable result for the child.

( b ) A child shall not be eligible for a children's pension under this Scheme where he is eligible for a more favourable children's pension under the Pension Schemes of 1984.

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

8. (1) A children's pension under this Scheme shall be paid to the deceased's widow where the eligible children are in her care, and in case any child in respect of whom the pension is payable is not in her care, the part of the pension attributable to that child shall be paid either to the child or to such other person as the relevant local authority may determine. Where children are in the care of several persons the children's pension shall be paid to those persons in such proportions as the local authority may determine.

(2) A children's pension paid to any person shall be so paid for the benefit of the children for whom it is granted.

(3) Subject to sub-article (6) and to article 5(2), a children's pension may be paid in relation to the period or periods subsequent to the date of death of the deceased (or, if later, the date of birth of the child) during which the person remains a child within the meaning of this Scheme.

(4) The rate of children's pension under this Scheme shall be as set out in the following Table.

TABLE

Rate of children's pension under this Scheme

PART I

Where the deceased leaves no widow or, where he leaves a widow and the widow dies, the rate of children's pension under this Scheme shall be as follows:—

PART II

Subject to article 8(5), where the deceased leaves a widow, the rate of children's pension under this Scheme shall be as follows:"

(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, on application from the relevant local authority, and if he thinks fit, direct that for so long as they are in such care the rate of the children's pension may be calculated by reference to any or all, as may be appropriate, of the rates set out in Part I of the Table to sub-article (4) 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 any or all, as may be appropriate, of the following rates, namely, those specified in Part I of the Table to sub-article (4), 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) during the period beginning on the 1st day of July, 1977 and ending on the 30th day of June, 1979, one-third of the rate of the deceased's pension,

(iii) as of and from the 1st day of July, 1979, five-twelfths of the rate of the deceased's pension.

(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 on application from the relevant local authority 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 sub-article he may, on such application from the local authority, further direct that sub-article (5) shall apply as respects any such period.

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

9. The fact that section 51 of the Act of 1956 (which enables the partial allocation of pensions to wives and dependants) applied to a pensionable servant to whom this Scheme applies shall not affect his rights under this Scheme and the pension payable under this Scheme in respect of the service of such a person shall be calculated as if any surrender under the said section 51 had not been made.

10 Provisions affecting section 52 of the Act of 1956 and section 77 of the Act of 1948.

10. A widow's or children's pension granted in respect of a man in respect of whom an allowance is payable under section 52 of the Act of 1956 or under section 77 of the Local Government (Superannuation) Act, 1948 shall be taken into account for the purpose of determining the amount of the said allowance under section 52 or section 77 and such allowance together with any widow's or children's pension shall not exceed five-sixths of the remuneration (inclusive of the money value of emoluments (being any apartments, rations or other perquisites in kind), if any) of the position in which he received the injury.

11 Giving of information.

11. (1) A pensionable servant to whom this Scheme applies shall give to the local authority such information as is necessary for the proper operation of this Scheme in relation to him.

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

(3) The legal personal representative of a deceased pensionable servant to whom this Scheme applies shall give to the local authority such information as is necessary for the proper operation of this Scheme in relation to the widow or any children of the deceased.

(4) A person having the care of a child of a deceased pensionable servant to whom this Scheme applies shall give to the local authority such information as is necessary for the proper operation of this Scheme in relation to that child.

(5) Payment of pension under this Scheme shall be subject to the making by the widow, or where children's pension is not payable to the widow, the person having the care of the children in question, of such declaration as the local authority consider necessary, and a person to whom any such payment may be made shall not be entitled to receive such payment if he fails to make any such declaration.

12 Repayment of pensions overpaid.

12. Where 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 legal personal representative of such person, shall pay to the local authority 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 local authority as a simple contract debt in any court of competent jurisdiction.

13 Pensions to be inalienable.

13. Every assignment of or charge on, and every agreement to assign or charge, a pension payable under this Scheme 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.

14 Applications of certain provisions of the Acts of 1945 and 1956 to this Scheme.

14. ( a ) Sections 55, 56, 57, 58, 59 and 66 of the Act of 1956 shall apply to this Scheme as respects pensionable servants to whom this Scheme applies, other than persons referred to in paragraph (b) of the definition of "pensionable servant" in article 3.

( b ) Sections 89(4), 90 and 92 of the Act of 1945 shall apply to this Scheme as respects pensionable servants to whom this Scheme applies referred to in paragraph (b) of the definition of "pensionable servant" in article 3.

GIVEN under the Official Seal of the Minister for the Environment this 4th

day of December, 1984.

LIAM KAVANAGH.

Minister for the Environment.

The Minister for the Public Service hereby consents to the making of this Scheme.

GIVEN under the Official Seal of the Minister for the Public Service this

4th day of December, 1984.

JOHN BOLAND.

Minister for the Public Service.

EXPLANATORY NOTE.

This Scheme provides pensions for the widows and children of certain pensionable male servants of local authorities who retired or died prior to 27th May, 1977.