The Gazette 1991

GAZETTE

DECEMBER 1991

Equal Treatment, Married Women and Social Welfare Rights

Directive 79/7/EEC on the progressive implementation of equal treatment for men and women in matters of social security came into force on 23 December, 1984. The Directive applies to the working population and to retired or invalided workers and self- employed persons. 1 It covers statutory schemes which provide protection against sickness, invalidity, old age, accidents at work and occupational diseases and unemployment; and also applies to social assistance payments insofar as they are intended to supplement or replace such schemes. 2

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2. Married women received un- employment benefit for only twelve months as opposed to fifteen months in the case of most claimants. 3. A married man automatically received increases for adult and child dependants even where his wife was not actually dependent on him. However, a married woman could only claim these payments where the husband was incapable of supporting himself by reason of mental or physical infirmity. 4. A married woman was only entitled to the means tested unemployment assistance where her husband was in- capable of self-support. The Irish Government did not implement the Directive by the 23 December, 1984. In fact it was only in the Social Welfare (No. 2) Act, 1985 that provision was made to amend the discriminatory pro- visions referred to above. Even then these provisions did not come into effect until May, 1986 as con- cerned the lower rates of payment and the shorter duration of unemployment benefit 3 and November, 1986 as concerned the dependant increases. 4 The rele- vant provisions increased the rate of payment for married women to that received by other claimants and increased the duration of unemployment benefit for married women to 15 months. The legislation also provided that payment of an increase in respect of adult and child dependants was

Article 4 of the Directive provides that "The principle of equal treat- ment means that there shall be no discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns: • the scope of the schemes and the conditions of access thereto, • the obligation to contribute and the calculation of contributions, • the calculation of benefits including increases due in respect of a spouse and for dependants and the condi- tions governing the duration and the retention of entitlement to benefits." Historically, married women living with or being maintained by their husbands had been treated less favourably under the Irish social welfare code than had married men and single persons. At the time when the Directive came into force in 1984 several discriminatory provisions remained in the social welfare system. These included the following: 1. Married women in receipt of unemployment benefit, disability benefit, invalidity pension, injury benefit, disablement benefit and unemployability supplement received £5 less per week than did married men and single persons. Discrimination under the Irish social welfare code:

Mel Cousins

by Mel Cousins BL, Administrator, FLAC.

to be limited to a situation where actual dependency could be shown irrespective of the sex of the claimant. 5 This provision meant that many married men in receipt of social welfare payments were no longer entitled to dependency in- creases in respect of their wives and that their child dependant increases were reduced. Accordingly the Minister for Social Welfare intro- duced "transitional payments" to these claimants to partially compensate for the loss of the dependency increases. 6 These transitional payments were only paid to married men. McDermott & Cotter I: 7 In early 1985 two married women, Ann Cotter and Norah McDermott, who were affected by the dis- criminatory provisions which remained in force in Ireland in relation to social welfare payments, brought a case to the High Court claiming that they were entitled to be treated in the same way as married men in the same position in accordance with the EC Directive regardless of the fact that Ireland had not implemented the Directive at that tima The High Court referred this case to the European Court of Justice for a preliminary ruling as to whether the Directive had direct 391