ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00058993

Parties:

Complaint:

Date of Adjudication Hearing:  03/11/2025

Workplace Relations Commission Adjudication Officer:  Catherine Byrne

Procedure:

1. This complaint was submitted to the WRC on May 20th 2025 and, in accordance with section 25 of the Equal Status Act 2000, it was assigned to me by the Director General. The Complainant is Ms Una Dunphy and her complaint concerns the failure of the Department of Social Protection (“the Department”) to grant her a widow’s pension following the death of her partner in October 2009.
2. The judgement of the Supreme Court of January 22nd 2024 in O’Meara v Minister for Social Protection, Ireland and the Attorney General[1] (“O’Meara”) resulted in the enactment of the Social Welfare (Bereaved Partner’s Pension and Miscellaneous Provisions) Act 2025 (“the 2025 Act”) which came into effect on July 21st 2025. This legislation amends s.123 of the Social Welfare Consolidation Act 2005 and replaces the widow’s, widower’s and (from 2010) the civil partner’s contributory pensions with a “Bereaved Partner’s Contributory Pension” (BPCP).  Although Ms Dunphy submitted this complaint to the WRC before the new legislation was enacted, she claims that the January 2024 decision of the Supreme Court means that the Department’s refusal, in 2009, to grant her a widow’s pension, is a breach of her right to be treated in accordance with Article 40.1 of the Constitution, which holds that all citizens are equal before the law.  She claims that her entitlement to a BPCP should be paid to her retrospectively, from the date of her partner’s death in 2009.
3. A hearing was scheduled for Monday, November 3rd 2025 and the Department’s submission was provided to me and Ms Dunphy the same day. Despite the late delivery of the submission, Ms Dunphy agreed that the hearing could go ahead and, after a break to read the submission, the hearing commenced.  Ms Dunphy represented herself.  The Department of Social Protection was represented by Mr Niall Fahy BL, instructed by Ms Eileen Burke of the Office of the Chief State Solicitor.  Ms Emer Murphy and Mr Colm Walsh of the Department of Social Protection also attended.
4. Two weeks after the hearing, Ms Dunphy sent the case officer a copy of the notes she read from on November 3rd with her response to the Department’s submission. Due to the late delivery of that submission, Ms Dunphy requested another hearing date at which she said she hoped “to develop arguments with witness statements and others who were involved in the O’Meara case.”  On December 9th, the case officer wrote to both parties to confirm that the hearing would be re-listed and, on December 18th, they were notified that the hearing would resume on February 16th 2026 at 11.00am.  When the hearing re-opened, Ms Dunphy was not in attendance.  I am satisfied that the letter notifying her of the hearing was sent by email to the email address used for the previous correspondence to her and that it was delivered.  Mr Niall Fahy BL and Ms Triona Feeney of the Office of the Chief State Solicitor attended on February 16th, with Ms Emer Murphy and Mr Declan Martin from the Department of Social Protection.  The hearing concluded after Mr Fahy summarised the Department’s position.
5. To reach the findings set out below, I have considered Ms Dunphy’s evidence at the hearing on November 3rd 2025, the note she sent to the WRC on November 17th 2025 and the submissions of the Department in response to her complaint. While the parties are named in this document, from here on, I will refer to Ms Dunphy as “the Complainant” and to the Department of Social Protection as “the Department.”

The Supreme Court Judgement in “O’Meara:”

6. The Complainant’s claim for a retrospective payment is set in the context of the legislative changes arising from the O’Meara judgement and it may be useful therefore, to provide some background to the Supreme Court decision in respect of that appeal.
7. Following the death in 2021 of his partner and mother of his three children, John O’Meara’s claim for a widower’s pension was refused by the Department. Mr O’Meara and his children challenged that decision on the grounds that it infringed their right to equality under the Constitution and the European Convention on Human Rights.  When their appeal was dismissed by the High Court, Mr O’Meara and his children were granted leave to appeal to the Supreme Court.  The Supreme Court held that s.124 of the Social Welfare Consolidation Act 2005 (“the 2005 Act”) was inconsistent with the Constitution insofar as it did not extend a widower’s pension to Mr O’Meara.  Quashing the decision of the Department of Social Protection to refuse Mr O’Meara a widower’s pension, at paragraph 159 of his judgement, O’Donnell CJ stated,

“This is not a complete solution for the appellants since it would require a legislative amendment to positively provide for a benefit in their case.  It remains a matter for the Oireachtas to consider how best to make provision for benefit consistent with the provisions of Article 40.1 of the Constitution.”

8. The legislative amendment arising from this judgement means that s.124A of the 2005 Act now provides for the payment of a pension to a bereaved partner (a “qualifed cohabitant”). Section 124A(2) provides that a bereaved partner who is a surviving qualified cohabitant, shall, regardless of the date of the death of their partner, be entitled to a BPCP with effect from January 22nd 2024, or the date of death, whichever is the latest.

Summary of the Case for the Complainant:

9. The Complainant’s application for a widow’s pension in 2009 was denied because she and her late partner were not married. At the hearing on November 3rd 2025, she said that she was waiting for a case to be taken.  She said that she started to get active after the O’Meara judgement in January 2024 and she sent a Form ES1 to the Department to see what would happen.  On her ES1 Form, the Complainant claimed that the outcome of the Supreme Court judgement of January 2024 means that the failure of the Department to grant her a widow’s pension in 2009 breached the guarantee of equality in article 40.1 of the Constitution.  Setting out her claim, she said,

“The same Constitution applied to my application in 2009 and the refusal should now also be quashed and damages paid to my family for the failure of the Department of Social Protection to protect us from poverty and avail of an acceptable quality of life.”

10. The Complainant has been invited to apply for a BPCP, although I understand that she has not done so. If she makes a claim, January 22nd 2024 is the date from which retrospective payments will be calculated.  She maintains however, that she has been unfairly treated since 2009 and she argues that “the State should do right by us.” 
11. The Complainant understands that Mr O’Meara’s entitlement to a BPCP was back-dated to a date in 2021 when he applied for a widower’s pension. She argues that she should be treated in the same manner and that her claim should be back-dated to 2009.

Summary of the Case for the Department of Social Protection:

12. The Department’s position is that the refusal of the Complainant’s application for a widow’s pension in 2009 was correctly decided in accordance with s.124 of the 2005 Act, which was the law at the time. Section 124 has been repealed by s.7 of the 2025 Act and the widow’s, widower’s and civil partner’s pensions are no longer payable.  The Complainant is eligible for a BPCP.
13. The judgement of the Supreme Court of January 2024 did not result in Mr O’Meara being entitled to a widower’s pension, or to the Complainant becoming entitled to a widow’s pension. Rather, it held that s.124 of the 2005 Act was inconsistent with Article 40.1 of the Constitution because the pension benefit did not extend to Mr O’Meara, as the parent of his children.  The Court noted that its finding that the 2005 Act was inconsistent with the Constitution required a legislative response.
14. Mr Fahy raised a number of preliminary issues for consideration before the substantive matter of discrimination can be addressed. These can be distilled into three specific points, which I will attempt to summarise now.

The Time Limit for Submitting a Complaint

15. Firstly, the Complainant did not notify the Department within two months of the decision not to award her a widow’s pension in December 2009. This is the only alleged act of discrimination in respect of which she has made a complaint.  Mr Fahy submitted that the Complainant’s ES1 Form, which, I am satisfied, was submitted on May 20th 2025, cannot be considered, because it was submitted more than two months from the date of the alleged discrimination.  He argued further that the complaint form is not even within two months of the date on which the Complainant ought to have become aware of the grounds of her complaint.  Unless the Complainant can satisfy me, as the adjudicator in her case, that exceptional circumstances arise under s.21(3)(a)(ii) of the Act, Mr Fahy submitted that her complaint cannot be entertained. 
16. Mr Fahy also referred to the finding of the Supreme Court in McDonnell v Ireland[2] that an action for breach of constitutional rights is a tort, and the ordinary tort time limit principles apply. In 1974, Mr McDonnell was convicted in the Special Criminal Court of membership of a prescribed organisation and compelled to forfeit his job as a civil servant.  This occurred pursuant to legislation declared to be unconstitutional in 1991.  Soon afterwards, Mr McDonnell brought an action for damages against the State.  In an ex tempore judgement, Carroll J found that Mr McDonnell was not entitled to damages because the ordinary statute of limitations had expired:

“There is merit in counsel for the plaintiff’s argument that the forfeiture was inoperative, but the argument applies only for as long as the cause of action is not barred.  Once the cause of action was barred, the de facto forfeiture, which was an act done on foot of an unconstitutional law, became immune from suit.” 

The 2009 Decision was Correct in Law

17. Mr Fahy submitted that the decision reached by the deciding officer in 2009, which was not appealed, must be considered to be valid and in accordance with the law as it then applied. The deciding officer was required to establish that the applicant was a widow, meaning that she was married or that her marriage had been dissolved.  The deciding officer could not have had regard to constitutional arguments and was bound to apply the law as it then was, which required the applicant to establish that she was a widow.  Mr Fahy argued that the WRC has no jurisdiction to review or appeal the decisions of deciding officers under social welfare legislation.  This statutory function is carried out by the Social Welfare Appeals Office.  The Department’s case is that the deciding officer was required by law to apply the enactment as she did and, as such, s.14(1)(a) of the Equal Status Act renders the decision unreviewable by the WRC.  Section 14(1)(a) has the title, “Certain measures or activities not prohibited” and states: 
    • (1) Nothing in this Act shall be construed as prohibiting -
      • (a) the taking of any action that is required by or under -
    • (i) any enactment or order of a court,

(ii)       any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or

(iii)       any convention or other instrument imposing an international obligation on the State[.]

The remainder of this section is not relevant to the Complainant’s case.

18. This section provides that the WRC has no jurisdiction to review the lawfulness of “the taking of any action that is required by or under … any enactment.” The refusal of the Department to grant the Complainant a widow’s pension in 2009 was required under an enactment and therefore, cannot be held to be discriminatory with reference to the Equal Status Act.  In this regard, Mr Fahy referred to the decisions of my colleague adjudicators in Eager v Minister for Social Protection[3] and Walsh v Minister for Social Protection[4], where the Complainants’ claims for benefits were refused on the basis of an enactment.

No Entitlement Prior to January 2024

19. Finally, for consideration as a preliminary matter, is the Complainant’s claim that her complaint relates to changes in the legislation which she considers does not make provision for family situations such as hers, and that her claim pre-dates the enactment of the 2025 amendment. Relying on the O’Meara judgement, she argues for a retrospective payment.
20. The Department’s position is that, in July 2025, the Oireachtas legislated for the introduction of a Bereaved Partner’s Contributory Pension. If the eligibility criteria are met, s.124A(2) of the 2005 Act provides that the payment of a BPCP to the surviving cohabitant will be back-dated to the date of the death of the qualified cohabitant, or the date of the Supreme Court judgement, January 22nd 2024, whichever is the latest.

The Complainant’s Response to the Preliminary Issues:

21. On November 17th 2025, the Complainant replied in writing to the Department’s submission delivered at the hearing on November 3rd. She addressed the contention that her claim was time-barred, asserting that this is based on the Department’s “assumption that there is no discrimination against my family.”  She said that the discrimination her family suffered is the same as that suffered by the O’Meara family which, she said, was “over-ruled in the Supreme Court outcome of January 2024.” 
22. On this basis, the Complainant argues that there is continuous discrimination, which has not been addressed by the new legislation “which is forward-focussed and welcomed, but leaves families such as mine in limbo, due to the tainted nature of the application of the 2005 Social Welfare Consolidation bill (sic).”
23. The Complainant acknowledges that her complaint was submitted ahead of the enactment of the 2025 amendment, but she said that “there is nothing stopping another complaint coming based on the July legislation, which would be in time…” Until the discrimination is addressed, the Complainant submitted that “the issue of time barring is not legitimate.”
24. The Complainant asserts that the relevant case is the Supreme Court ruling in O’Meara, which, she argues, supersedes all that came before, and specifically the denial of the widow’s and widower’s contributory pension to unmarried families. She claims that the case highlights “the acceptance in the Constitution of families with shared responsibilities outside of the narrow definition by the Department of Social Protection.” 
25. The Complainant referred to the decision of the Department to back-date Mr O’Meara’s entitlement from the date of the death of his partner in 2021. She said that this was not a confidential arrangement and it overturned the refusal to grant him a widower’s pension at the time.  She claims that the new legislation was to address this “flaw in the 2005 Act.”  She claims however, that families like hers are “left in limbo, covered by the ruling but not by the new legislation.”  She said that this is the reason for her complaint.  She argued that “the shortcomings with the legislation of July 2025 need to be rectified to fulfil the decision of the Supreme Court in recognising that children and families cannot be discriminated against due to the marital status of the parents.”
26. Referring to s.124 of the 2005 Act which denied unmarried people an entitlement to a widow’s pension, the Complainant said that the Supreme Court deemed this to be both unconstitutional and invalid in the manner in which it was applied to unmarried families. The back-dating of the benefit to the O’Meara family ensured that they received their full entitlement “from when they would have qualified under Constitutional law.”  The Complainant argues that, further to the Supreme Court ruling, her family has the same entitlement.
27. The Complainant submitted that “All applications made and refused between 2005 and 2024 which fulfilled the criteria, but for the marriage requirement, were therefore tainted.” She claims that a precedent has been set in in the January 2024 Supreme Court judgement.  The Complainant claims that she and her family are entitled to expect the same treatment, and not to have to appeal to the Supreme Court.
28. The Complainant claims that it is unacceptable for the Department to re-run “arguments that were wholly rejected by the Supreme Court” which reached a unanimous decision to award a pension to unmarried parents.
29. Referring to the widow’s pension as a “non-means tested payment in addition to the surviving parent’s income,” the Complainant said that the pension is to aid families who lose a parent due to a death. The Complainant referred to the fact that she a carer for her parents and in receipt of a social welfare benefit, namely, the Carer’s Allowance.  While there was no meaningful discussion about this at the hearing on November 3rd 2025, in her submission of November 17th, she complained that “the halving of a Carer’s Allowance is an unfair penalty” for one-parent families such as hers and that it is discriminatory.  She said that the responsibility for caring generally falls on women of a certain age, “who would be at their peak earning, but give the time to become carers.”  Because the earning capacity of a single parent is less than that of two parents, the Complainant claims that the halving of the carer’s allowance is discriminatory for surviving parents. 
30. Referring again to the O’Meara judgement, the Complainant said that it recognised unmarried parents as families in need of the same treatment as others experiencing bereavement and loss. She claims that the Department’s transposition into law of the judgement falls short and that her complaint is to address this shortcoming.     
31. In the documents she sent to the WRC on November 17th 2025, the Complainant included a document with the title, “Deep Seek Response” which appears to confirm her position regarding the issue of retrospection. I learned from the internet that “Deep Seek” is a Chinese AI platform.  As she was not in attendance to present the case set out in this document, I do not intend to consider the hypothesis contained therein.

Findings on the Preliminary Issues:

32. The Complainant’s case is that she has been discriminated against by the Department on two grounds: firstly, by failing to grant her a widow’s pension in 2009 and, secondly, by failing, in 2025, to pay her a benefit retrospectively from 2009. The preliminary issues raised by the Department require to be addressed in advance of any consideration of these substantive matters.

The Time Limit for Submitting a Complaint

33. A person alleging that they have been discriminated against in breach s.5 of the Equal Status Act 2000 (“the Act”), is generally expected to comply with two separate time limits. The first, at s.21(2) provides that, within two months of the date on which the prohibited conduct is alleged to have occurred, a complainant must notify a respondent in writing and inform them of his or her intention to seek redress.  This is generally done using a “Form ES1” which has been developed by the WRC for the purpose of submitting the details of a complaint.  Section 21(3)(a)(i) of the Act provides that, for reasonable cause, the two-month time limit may be extended to four months.  Exceptionally, in accordance with s.21(3)(a)(ii), an adjudicator may disregard the time limit altogether.  The Complainant made no application for the time limited to be disregarded and, I am satisfied that, considering the gap of 15 years from the date of the original decision, and the failure of the Complainant to appeal the original decision, it would be unfair and unreasonable to do so.
34. The second time limit is set out at s.21(6) of the Act and provides that a complaint of discrimination may not be referred to the WRC more than six months after the most recent incident of discrimination. For reasonable cause, this six-months may be extended to 12 months. 
35. This complaint was submitted to the WRC on May 20th 2025, and, on May 26th, a member of the Information and Customer Services Team wrote to the Complainant and asked her to clarify the date on which she sent the Form ES1 to the Department. On October 29th 2025, the Complainant replied and said that she did so on March 6th 2024; however, it is evident from the documents submitted by the Department that, on March 6th 2024, the Complainant did not submit an ES1, but that she sent a customer feedback form to the Department’s online customer portal.  At the hearing, I established that the Complainant submitted the ES1 with the WRC complaint form on May 20th 2025. 
36. The Complainant’s case is that she was discriminated against when she was refused a widow’s pension in December 2009 and that the discrimination is continuing.
37. While the effect of the refusal to grant the Complainant a widow’s pension may be ongoing, the refusal was, as submitted by Mr Fahy, “a discrete act” which started and ended with the decision of the deciding officer in December 2009. The analogy to an unfair dismissal suggested by Mr Fahy is a useful one.  A dismissal is a discrete act, occurring on a specific date, but the effect, such as the loss of earnings, loss of status, unemployment, stress and so on, may continue far beyond that date.  From the perspective of the right to make a complaint about unfair dismissal, the clock starts ticking on day one, and stops ticking six months later.  The same time limit applies to a complaint under the Equal Status Act, albeit, that there are two time limits, the first (two months) to notify the respondent and the second (six months) to notify the WRC.
38. In December 2009, it was open to the Complainant to bring a complaint to the WRC about the Department’s decision not to grant her a widow’s pension. When I asked her why she didn’t make a complaint in 2009, she said that she was waiting for a case to be taken.  She has not explained why she didn’t bring a case herself. 
39. I have considered the Complainant’s response to the out of time issue and, it is my view that, in 2009 or soon afterwards, by not challenging the decision not to grant her a widow’s pension, she accepted that decision, albeit with a degree of indignation and hurt. In 2009, she could have appealed the decision to the Department of Social Protection Appeals Office or, she could have submitted a complaint under the Equal Status Act to the WRC.  Like Mr O’Meara, she could have challenged the decision in the civil courts.
40. In conclusion therefore, on the issue of the time limit, I find that, in accordance with s.21 of the Act, the Complainant is not entitled to seek redress because the alleged act of discrimination which is the subject of this complaint occurred in December 2009, 15 years before the complaint was submitted to the WRC.
41. Having reached this conclusion, I am not required to proceed further with my investigation. However, for completeness, I wish to address the remaining preliminary issues raised by the Department.

The 2009 Decision was Correct in Law

42. In its judgement on Mr O’Meara’s appeal, the Supreme Court granted an order of certiorari and quashed the Department’s 2021 decision not to grant him a widower’s pension. The Complainant claims that the effect of the judgement is that the decision not to grant her a pension in 2009 is overruled.  I do not accept this assertion.  The  judgement in O’Meara did not extend eligibility for a widower’s pension to Mr O’Meara, nor did it confer eligibility for a widow’s pension to the Complainant.  The Court concluded that what was required was a legislative response.
43. In the final paragraph 159 of the O’Meara judgement, O’Donnell CJ was specific that the Court was not making a declaration that s.124 of the 2005 Act was invalid with regard to the Constitution, but that it was “inconsistent with the Constitution insofar as it does not extend to Mr O’Meara as a parent..” The rationale here was that, if s.124 was invalid, then it might mean that those who were entitled to a widow’s or a widower’s pension before January 2024 may not be so entitled.  I agree with Mr Fahy’s position that the finding that s.124 of the 2005 Act was inconsistent with the Constitution does not mean that decisions taken in accordance with the 2005 Act are invalid.  
44. The problem arising from new legislation that alters certain provisions of existing law was addressed in the judgement of the Supreme Court in A v The Governor of Arbour Hill Prison[5], which was cited by Mr Fahy. On June 15th 2024, the appellant in this case was sentenced to three years in prison when he pleaded guilty to unlawful carnal knowledge contrary to s.1(1) of the Criminal Law (Amendment) Act 1935.  In May 2006, the Supreme Court declared that s.1(1) of the 1935 Act was inconsistent with the Constitution and the appellant contended that his detention was unlawful.  Setting out the rationale for rejecting his appeal, Finlay Geoghegan J stated:

“The correct rule must be that laws must be observed until they are struck down as unconstitutional.”

Further on, the learned judge explained the effect of this proposition:

“Thus, in the case of a prosecution under section 1(1) of the Criminal Law (Amendment) Act, 1935 instituted and completed before any declaration of inconsistency has been made by this court, a ‘good order’ interpretation of the Constitution must clearly require that orders and warrants made in a completed criminal case under the impugned provision must continue to be deemed valid.”

45. Based on this authority, it follows that administrative decisions made in accordance with a statutory provision that applies on a particular date cannot be held to be unlawful years later, arising from a change in the law. I am satisfied therefore, that the conclusion of the Supreme Court that s.124 of the 2005 Act was inconsistent with the Constitution in the manner that it did not extend to Mr O’Meara, does not have the effect of rendering invalid decisions reached prior to the judgement of January 2024.

No Entitlement Prior to January 2024

46. Having considered the Complainant’s evidence, it is apparent to me that the crux of her dispute with the Department is grounded in the absence from the new legislation of a provision to back-date the BPCP from the date of the death of her partner in 2009. Her focus is not on overturning the 2009 decision to refuse her a widow’s pension, but concerns the fact that the 2025 Act makes no provision for remedying the effect of that decision by legislating for the payment of a retrospective benefit. 
47. The Complainant’s application for redress in the form of a retrospective payment is problematic, firstly because she did not meet the marriage criterion to qualify for a widow’s pension in 2009. Secondly, she cannot assert a right to a BPCP from 2009, because the legislation introducing that benefit was enacted in July 2025.  Finally, the decision to make January 22nd 2024 the date of the commencement of eligibility for a BPCP is obviously grounded in the fact that that was the date on which the Supreme Court ruled that legislation was required to expand the entitlement to a pension to bereaved partners in addition to husbands and wives.  It is the role of the Oireachtas to legislate for the effective date of changes arising from new legislation and it is not within the remit of the WRC to consider a challenge to that legislation.

Decision:

48. Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
49. There is no question that the years following the death of her partner in an accident in 2009 must have been incredibly difficult for the Complainant and her six children. In her submission, she described the effect of his absence and particularly, the absence of his support as the main carer of their children, which allowed the Complainant to work full-time as a teacher.  I understand that, in the years since 2009, the Complainant has availed of supports from the Department of Social Protection, but that the payment to her of a widow’s pension, as it would have been non-means tested, would have been of significant benefit.
50. My role is to consider if the Complainant was discriminated against in 2009, contrary to s.5 of the Equal Status Act 2000. To avail of an investigation, a complaint must be submitted to the WRC within two months of the discriminatory act.  I have reached the conclusion that the decision of the Department to refuse the Complainant’s application for the widow’s pension in December 2009 was a discrete act, and that it was not ongoing.  Although there were avenues open to the Complainant to appeal against that decision, she did not submit an appeal.  I must find therefore that, in respect of this complaint, it has been submitted outside the statutory time limit set out at s.21 of the Act of 2000 and I have no authority to proceed any further.  For this reason, I decide that this complaint is not well founded.

Dated: 23rd of April 2026.   

Workplace Relations Commission Adjudication Officer:  Catherine Byrne

Key Words:

[1] O’Meara v Minister for Social Protection, Ireland and the Attorney General, [2024] IESC 1

[2] McDonnell v Ireland, [1998] 1 IR 134

[3] Eager v Minister for Social Protection, ADJ-00028241

[4] Walsh v Minister for Social Protection, ADJ-00035744

[5] A v The Governor of Arbour Hill Prison, [2006] 4 IR 88