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4 1994

SOCIAL WELFARE ACT, 1994

PART IV

Survivor's Pension

Survivor's pension.

11. —The Principal Act is hereby amended by the substitution for Chapter 16 of Part II of the following Chapter:

“CHAPTER 16

Survivor's Pension

Interpretation.

100.—In this Chapter—

relevant time’ means—

(a) if the contribution conditions are being satisfied on the survivor's insurance record—

(i) the date of the spouse's death, or

(ii) if the survivor attained pensionable age before the date of the spouse's death, the date on which he attained that age,

or

(b) if the contribution conditions are being satisfied on the deceased spouse's insurance record—

(i) the date on which the spouse attained pensionable age, or

(ii) if the spouse died before attaining pensionable age, the date of his death;

spouse’, in relation to a survivor who has been married more than once, refers only to his last spouse;

survivor’ means a widow or a widower;

yearly average’ means the average per contribution year of contribution weeks in respect of which the survivor or deceased spouse (as the case may be) has qualifying contributions, voluntary contributions or credited contributions in the appropriate period specified in section 102(1) (b).

Entitlement to pension.

101.—(1) Subject to this Act, a survivor shall be entitled to survivor's pension—

(a) if the contribution conditions set out in section 102 are satisfied on either the insurance record of the survivor or that of his deceased spouse,

(b) if his spouse was entitled to an old age (contributory) pension or a retirement pension at an increased weekly rate by virtue of section 87 (1) or section 91 (1) in respect of a period ending on his death, or

(c) if his spouse would have been entitled to an old age (contributory) pension or a retirement pension at an increased weekly rate by virtue of section 87 (1) or section 91 (1), but for the receipt by that survivor of an old age (non-contributory) pension, a blind pension or a carer's allowance in his own right, in respect of a period ending on his death.

(2) A survivor's pension shall not be payable to a survivor for any period after his remarriage.

(3) A survivor shall be disqualified for receiving a survivor's pension if and so long as he and any person are cohabiting as husband and wife.

(4) A woman who becomes a widow while she is in receipt of or entitled to deserted wife's benefit shall, on becoming a widow, be entitled to a survivor's pension at the same rate as that of the deserted wife's benefit payable to her, whether or not the relevant contribution conditions for entitlement to such pension are satisfied in her case.

Conditions for receipt.

102.—(1) The contribution conditions for survivor's pension are—

(a) that the survivor has qualifying contributions in respect of not less than 156 contribution weeks in the period beginning with his entry into insurance and ending immediately before the relevant time, and

(b) that, if at the relevant time, 4 years or longer has elapsed since the survivor's entry into insurance—

(i) the yearly average for the 3 contribution years, or (if warranted by his insurance record) 5 contribution years, ending with the end of the last complete contribution year before the relevant time is not less than 39, or

(ii) the yearly average in respect of the period commencing at the beginning of the contribution year in which his entry into insurance occurred and ending at the end of the last complete contribution year before the relevant time is not less than 48,

but, if those conditions are not satisfied on the survivor's insurance record, they may be satisfied on his deceased spouse's insurance record (the survivor's insurance record being disregarded).

(2) Regulations may provide for modifications of the meaning of yearly average contained in section 100 or of the contribution conditions set out in this section.

(3) Subject to subsection (4), regulations may provide for entitling to survivor's pension a person who would be entitled thereto but for the fact that the contribution condition set out in subsection (1) (b) is not satisfied.

(4) Regulations for the purposes of subsection (3) shall provide that survivor's pension payable by virtue thereof shall be payable at a rate less than that specified in the Second Schedule, and the rates specified by the regulations may vary with the extent to which the contribution condition set out in subsection (1) (b) is satisfied, but any increase of pension payable under section 104 (1) shall be the same as if that condition had been fully satisfied.

(5) Subject to subsection (6), regulations may provide for entitling to survivor's pension a person who would be entitled thereto but for the fact that the contribution condition set out in subsection (1) (b) is not satisfied by reference to the insurance record of a person where that person, having earlier ceased to be an employed contributor became an employed contributor as a consequence of the coming into operation of section 12 of the Social Welfare Act, 1973 .

(6) Regulations for the purposes of subsection (5) shall provide that survivor's pension payable by virtue thereof shall be payable at a rate less than that specified in the Second Schedule, and the rates specified by the regulations may vary with the extent to which the contribution condition set out in subsection (1) (b) is satisfied.

(7) Where a person becomes an employed contributor by virtue of paragraph (b) of section 9 (1) and would not, apart from that paragraph, be an employed contributor, his entry into insurance by virtue of that paragraph shall be deemed not to be an entry into insurance for the purposes of subsection (1) and for those purposes his entry into insurance shall be deemed to occur when he first becomes an employed contributor by virtue of paragraph (a) of section 9 (1).

(8) In the case of a person who became a self-employed contributor on the 6th day of April, 1988, and who at any time prior to that date was an employed contributor, the date on which the person first entered into insurance or the 6th day of April, 1988, whichever is more favourable, shall be regarded as the date of entry into insurance for the purposes of subsection (1) (b).

Rate of pension.

103.—Subject to this Act, the weekly rate of survivor's pension shall be as set out in column (2) of Part I of the Second Schedule.

Increases (including increases for child dependants).

104.—(1) The weekly rate of survivor's pension shall be increased by the amount set out in column (4) of Part I of the Second Schedule in respect of each qualified child who normally resides with the beneficiary.

(2) The weekly rate of survivor's pension shall be increased by the amount set out in column (6) of Part I of the Second Schedule where the beneficiary has attained pensionable age and is living alone.

(3) The weekly rate of survivor's pension shall be increased by the amount set out in column (7) of Part I of the Second Schedule where the beneficiary has attained the age of 80 years.

Disregard of self-employment contributions in certain cases.

105.—(1) In the case of any claim for survivor's pension, where the insurance record of a person, who, having been a self-employed contributor, is being used to establish entitlement to survivor's pension, the contribution conditions contained in section 102 shall not be regarded as having been satisfied unless all self-employment contributions payable by him in accordance with section 18 have been paid.

(2) Notwithstanding subsection (1), the Minister may, if he is satisfied that in all the circumstances of the case it would be appropriate to do so, direct that subsection (1) shall not be applied in that case.

Certain claims.

105A.—(1) (a) Entitlement to survivor's pension which is due to be determined by reference to the insurance record of a person who attained the age of 69 years before the 5th day of January, 1976, may be determined under the provisions of the Acts relating to social welfare in operation prior to the 1st day of July, 1974, if this would be to the advantage of the widow.

(b) A widow who, under the provisions of the Acts relating to social welfare in operation prior to the 1st day of July, 1974, has been awarded a survivor's pension on the basis of her own or her spouse's insurance record at the date on which she or he attained the then pensionable age shall on and after the 1st day of July, 1974, have a right to such pension at the rate for the time being payable by reference to a yearly average equal to the yearly average calculated in her case under those provisions.

(2) (a) Entitlement to survivor's pension which is due to be determined by reference to the insurance record of a person who attained the age of 68 years before the 3rd day of January, 1977, may be determined under the provisions of the Acts relating to social welfare in operation prior to the 1st day of April, 1975, if this would be to the advantage of the widow.

(b) A widow who, under the provisions of the Acts relating to social welfare in operation prior to the 1st day of April, 1975, has been awarded a survivor's pension on the basis of her own or her spouse's insurance record at the date on which she or he attained the then pensionable age shall on and after the 1st day of April, 1975, have a right to such pension at the rate for the time being payable by reference to a yearly average equal to the yearly average calculated in her case under those provisions.

(3) (a) Entitlement to survivor's pension which is due to be determined by reference to the insurance record of a person who attained the age of 67 years before the 1st day of January, 1979, may be determined under the provisions of the Acts relating to social welfare in operation prior to the 1st day of October, 1977, if this would be to the advantage of the widow.

(b) A widow who, under the provisions of the Acts relating to social welfare in operation prior to the 1st day of October, 1977, has been awarded a survivor's pension on the basis of her own or her spouse's insurance record at the date on which she or he attained the then pensionable age shall on and after the 1st day of October, 1977, have a right to such pension at the rate for the time being payable by reference to a yearly average equal to the yearly average calculated in her case under those provisions.”.

Transitional provisions.

12. —(1) Notwithstanding Chapter 16 of Part II of the Principal Act (inserted by section 11 ), where, immediately before the commencement of this Part—

(a) a woman is in receipt of widow's (contributory) pension by virtue of section 100 of the Principal Act, or

(b) a man is in receipt of survivor's benefit by virtue of section 92 of the Principal Act,

survivor's pension shall be payable to that person on that commencement at the same rate as the said widow's (contributory) pension or survivor's benefit (as the case may be) which is payable to him immediately before the commencement.

(2) Any decision made by a deciding officer or by an appeals officer in relation to the award of—

(a) widow's (contributory) pension to a woman, or

(b) survivor's benefit to a man,

before the commencement of this Part shall be deemed to be a decision to award survivor's pension to such person on and from that commencement.

(3) Where, immediately before the commencement of this Part—

(a) a woman has applied for widow's (contributory) pension and that application has not been finally determined, or

(b) a man has applied for survivor's benefit and that application has not been finally determined,

any such application shall be deemed to be an application for survivor's pension.

Repeals, etc.

13. —(1) The Principal Act is hereby amended—

(a) by the repeal of—

(i) paragraph (h) of section 30 (1), and

(ii) Chapter 14 of Part II,

and

(b) in paragraph (f) of section 210 (2) by the deletion of “survivor's benefit”.

(2) Each provision of the Principal Act mentioned in column (1) of Schedule D to this Act is hereby amended in the manner specified in column (2) of that Schedule opposite the mention of that provision in column (1).

(3) Section 2 (1) of the Principal Act is hereby amended by—

(a) the substitution in subsection (1) in the definition of “entry into insurance” of “102 (7)” for “105 (1)”, and

(b) the substitution in subsection (3) (b) (ii) of “104 (1)” for “105 (1)”.

(4) Section 4 of the Principal Act is hereby amended by—

(a) the substitution in paragraph (a) of subsection (4) of “102 (3), 102 (5)” for “101 (3), 101 (9)”, and

(b) the substitution in subsection (5) of “102 (2)” for “101 (2)”.

(5) In the Principal Act every reference to a widow's (contributory) pension shall be construed as a reference to a survivor's pension and every reference to a survivor's benefit shall be construed as a reference to a survivor's pension.

Commencement ( Part IV ).

14. —This Part shall come into operation on such day as the Minister may appoint by order.