Survivors Pension Case 1

Background:

The appellant had been in receipt of a Widow’s Contributory Pension from 1977, following the death of her first husband. She remarried in 1990 and payment of pension was terminated. She was subsequently granted a decree of civil nullity and her Widow’s Pension was reinstated with effect from the date the decree was granted. A further decision granted retrospective payment from a date in 1997 on grounds that the appellant had not been cohabiting from that date. She had sought to have retrospective payment made for the duration of her second marriage but the Deciding Officer rejected her this claim on grounds that she and her former husband had been cohabiting during the period in question.

Oral Hearing:

The appellant was accompanied by a political representative. The Social Welfare Inspector was present at the request of the Appeals Officer. The Deciding Officer, whose attendance had also been requested, was unable to attend.

On the appellant’s behalf, it was submitted that this was a unique case and that the State had recognised that no marriage had taken place. In this regard, it was argued that it is more difficult to have a marriage annulled by the State than by the church. It was contended that the difficulties encountered in the marriage began almost immediately and that the appellant’s former husband had been diagnosed with a psychiatric disorder. The appellant asserted that she had sought support at an early stage but that her former husband refused to attend counselling.

It was contended that cohabitation had not taken place and that the appellant’s former husband had returned on many occasions to his parents’ home, for considerable periods of time. According to the appellant, they had, effectively, led separate lives; he had never made a contribution to the weekly shopping or household bills; they each had their own car; there was no joint bank account; they seldom socialised, he had not used her house as his address and he had not done any jobs around the house. The Appeals Officer asked the appellant how she had managed if her former husband was not making any financial contribution. In reply, she said that she had worked part-time and that land which she owned had been leased. The appellant contended that a sexual relationship was almost non-existent and that they had slept in separate beds. She reported that he left in 1997 and was subsequently admitted to hospital with a psychiatric illness. It was submitted that a relationship had not existed and that the appellant and her former husband had not been cohabiting in a real sense. Consequently, she maintained that she had a retrospective entitlement to Widow’s Pension.

Consideration of the Appeals Officer:

The Appeals Officer noted that although the reason cited for the refusal of retrospective payment was that the appellant and her former husband were cohabiting during the period specified; no detailed grounds were outlined for the Deciding Officer’s decision in the case. He considered that cohabitation is never an easy situation to establish and that decisions must often be made on the balance of probabilities, taking account of the weight of evidence. In this case, he noted that the Department of Social and Family Affairs had accepted that cohabitation did not take place after her former husband left the appellant’s home on a permanent basis in 1997. He regarded the case as both unusual and significant and, in the circumstances, considered it surprising that the person named as the cohabitee was not interviewed in the course of the Department’s investigation.

The Appeals Officer considered that the core issue in the case was not the appellant’s marital status but, rather, whether cohabitation as husband and wife took place during a period from 1990 to 1997. In determining whether cohabitation exists, factors taken into account include residency of the parties involved; pooling of resources; sharing of household responsibilities, sexual relationship and social relationship. He examined each of these factors with reference to the evidence available in the case. In terms of residency, he accepted that the parties could not be regarded as a single household. On the question of sharing household responsibilities, he considered that the evidence pointed to the absence of cohabitation and noted that it had not been rebutted by the Department. In relation to the stability of their relationship, he considered that the evidence indicated the lack of a stable relationship. He accepted the appellant’s contention as to the nature of their sexual relationship and, in terms of a social relationship, he considered that all the evidence pointed to a lack of commitment by her former husband to the appellant. He concluded that the weight of the evidence did not point to cohabitation.

Outcome:

Appeal allowed.