S.I. No. 579/2009 - An Coimisinéir Teanga Contributory Pension Scheme for Spouses and Children 2009 [Official Translation]

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 8th January, 2010.

I, ÉAMON Ó CUÍV, Minister for Community, Rural and Gaeltacht Affairs, in exercise of the powers conferred on me by section 20 of, and the Second Schedule to, the Official Languages Act 2003 (No. 32 of 2003) hereby make the following Scheme.

Citation.

1. This Scheme may be cited as An Coimisinéir Teanga Contributory Pension Scheme for Spouses and Children 2009.

Commencement.

2. The Scheme shall be deemed to have commenced with effect from the 23 February 2004, which shall be known as the date of commencement.

Definitions.

3. (1) “adoption order” means an adoption order made under the Adoption Acts, 1952 to 1998.

(2) “child”, subject to paragraph 6(1), means a child or step-child or lawfully adopted child of the Commissioner, who is—

(a) a person under sixteen years of age, or

(b) a person under twenty-two years of age who is receiving full-time instruction at any university, college, school or other educational establishment, or

(c) a person under twenty-two years of age who 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 subparagraph, or

(d) a person who is permanently incapacitated by reason of mental or physical infirmity from maintaining himself or herself and who, when his or her permanent incapacity first occurred, was a person described in any of the foregoing clauses of this subparagraph.

(3) “Commissioner” means An Coimisinéir Teanga as defined under paragraph 20(1) of the Official Languages Act 2003 , as appointed from 23rd day of February 2004;

(4) “death gratuity”, except in the expression “preserved death gratuity”, means a gratuity payable in accordance with paragraph 6(2)(c)(i) of the Main Scheme;

(5) “deceased’s pension” means:

(a) in case of retirement otherwise than on medical grounds, the pension granted to the Commissioner;

(b) in case, on retirement on medical grounds, the Commissioner is awarded a pension, the pension which would have been granted to him if it fell to be calculated by reference to the pensionable service which he would have had if he had served to the age of sixty-five years;

(c) in case a preserved pension was in payment to the Commissioner, the preserved pension granted to him at the date of resignation as increased by reference to pension increases granted under paragraph 9 of the Main Scheme during the period between resignation and death;

(d) in case, having resigned with entitlement to a preserved pension, the Commissioner dies before the age at which the preserved pension became payable or before making application for the preserved pension, an amount equal to—

((D × E)/(80))

where D is the number of years of pensionable service at the date of resignation, subject to a maximum of 40 years, and E is

(i) in relation to a member who is fully insured, his net pensionable salary (Spouses and Children’s Scheme) at the date of resignation as increased by reference to pension increases granted under paragraph 9 of the Main Scheme during the period between resignation and death;

(e) in case the Commissioner dies while serving as a member of the Main Scheme, the pension for which he would be eligible if clause (b) of this subparagraph applied to him;

(6) “former member” means the Commissioner if he retired from his position as Commissioner and was awarded a pension and lump sum or preserved pension and lump sum;

(7) “lawfully adopted child” means a child adopted by the Commissioner (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. Where the Commissioner was married when he applied for an adoption order in respect of a child and died before the adoption procedure is completed and the child is subsequently adopted by the Commissioner’s spouse, the child shall, from the date on which the Commissioner has custody of him or her, be deemed, for the purposes of this Scheme, to be the Commissioner’s lawfully adopted child;

(8) “Main Scheme” means An Coimisinéir Teanga Superannuation Scheme 2009.

(9) “member” means An Coimisinéir Teanga as defined under paragraph 20(1) of the Official Languages Act 2003, as appointed from 23rd day of February 2004;

(10) “Minister” means the Minister for Community, Rural and Gaeltacht Affairs;

(11) “Net pensionable salary” means the amount by which pensionable remuneration exceeds twice the annual maximum personal rate of Old Age (Contributory) Pension payable on the last day of pensionable service to a person who has no adult dependant or qualified children;

(12) “Old Age (Contributory) Pension” means the contributory old age pension payable under the Social Welfare Acts to a single person excluding any increase that is payable on age grounds, or by virtue of the recipient living alone, or in respect of a qualified adult or child dependant;

(13) “pensionable service” means service reckonable under paragraph 5(1) of the Main Scheme;

(14) “retirement gratuity”, means a gratuity awarded under the provisions of paragraph 6(2)(a) or 6(2)(b) of the Main Scheme;

(15) “retirement on medical grounds” means retirement in accordance with the provisions of paragraph 7 of the Main Scheme;

(16) “Retiring salary” means the salary of the Commissioner at the date of retirement or death where—

(a) the Commissioner has completed three years actual pensionable service as Commissioner at his date of resignation;

(b) the Commissioner dies in service with actual and pensionable service of more than 3 years;

(c) the Commissioner retires on health grounds before age 60 with actual and potential service to age 60 of more than 3 years.

In any other case retiring salary shall be taken as the total calculated by multiplying by 1/1095 the annual rate of salary appropriate on the last day of pensionable service for each grade in which the Commissioner served during the last three years of pensionable service, and multiplying the result by the number of days of his employment in each grade during those years, subject to the retiring salary so taken not exceeding the annual basic rate of salary payable at the time of retirement or death;

(17) “Salary” means the annual basic rate of remuneration payable from time to time as lawfully determined or lawfully approved by the Minister for Finance, excluding any sums paid in respect of overtime, commission, gratuity, special fees, travelling allowance, subsistence allowance and the like, the money equivalent of any emolument or benefit in kind (including motor car or other vehicle) or any payment toward or in respect of such emoluments;

(18) “Social welfare Acts” means the Social Welfare Acts 1981 to 2008 including any enactment which amends or extends any or all of those Acts and any regulation, warrant or order made thereunder;

(19) “spouse” means a partner to a marriage, recognised by the law of the State as valid, in respect of which no divorce recognized as valid by the law of the State has been granted;

(20) “years” means a figure determined by the formula A B/365 where A is the number of completed years in the period in question and B is any number of days additional to a completed year or a number of completed years in that period, and “year” shall be construed accordingly.

Power to grant Spouses and Children’s Pensions.

4. Subject to the provisions of this Scheme, the Minister may on the death of the Commissioner or former member (in this scheme referred to as the deceased) to whom or in respect of whom a pension or death gratuity, or preserved pension or preserved death gratuity has been, or is awarded, grant in respect of his service—

(a) where he leaves a spouse, a pension to that spouse (hereafter in this Scheme referred to as a “spouse’s pension”), and

(b) where he leaves a child or children (whether or not a spouse’s pension is, or may be, granted) a pension for such child or children (in this Scheme referred to as a “children’s pension”).

Spouse’s Pension.

5. (1) A spouse’s pension shall not be granted or paid under this Scheme—

(a) if the spouse was at the time of the death of the Commissioner cohabiting with a person other than the Commissioner as man and wife, or

(b) in respect of any time after the said death when the spouse is remarried or is so cohabiting with any person.

(2) Notwithstanding paragraph 5(1), where—

(a) a pension under this Scheme is not granted or ceases under the said paragraph 5(1), and

(b) at a date subsequent to the date of the marriage or cohabitation by reason of which the pension was withheld or ceased the Minister is satisfied that the marriage or cohabitation has come to an end, or that there are compassionate grounds for the payment of pension, the Minister may, if he or she thinks fit, 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 Minister,

provided that, where the spouse is entitled to benefit under this or any other public sector spouses’ and children’s pension scheme by virtue of the fact that her spouse of the second marriage was a member of this or of any other such Scheme, a spouse’s pension shall not be payable under this scheme unless the spouse’s pension payable by virtue of the second or later marriage is less than the spouse’s pension payable under this scheme.

(3) Subject to paragraph 5(1)and 5(2) a spouse’s pension may be paid for the whole of the period beginning on the death of the Commissioner and ending with the death of the spouse.

(4) The rate of a spouse’s pension shall be one-half of the rate of the deceased’s pension.

(5) Notwithstanding paragraph 5(4), where the Commissioner dies in service or while in receipt of a pension awarded under paragraph 6(1) of the Main Scheme and a spouse’s pension becomes payable to his spouse, the rate of that pension may, in respect of the first month after his death, be increased to—

(a) in case he dies in service, one twelfth of his pensionable remuneration.

(b) in case he dies after being granted a pension, where the rate of pension payable to him on the date of his death is greater than the rate of spouse’s pension otherwise payable under the Scheme, one twelfth of the said rate of pension,

provided that the rate as so increased shall be reduced by the rate of any children’s pensions payable under this Scheme, and provided also that the amount payable to the spouse under this Scheme in respect of the period of one month commencing on the day immediately following that of the deceased’s death may be paid at any time on or after the first day of the said period.

Children’s Pensions; Beneficiaries.

6. (1) The following shall not be regarded as a child within the meaning of this Scheme namely:

(a) a person who was not wholly or mainly dependent on the Commissioner immediately prior to his death,

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

(c) a person referred to in paragraph 3(2)(c) of the said definition of “child” to, 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 as makes the person self-supporting,

provided that if there are compassionate grounds for so doing, the Minister may, as regards a person who apart from this sub-paragraph would be such a child, direct that notwithstanding this sub-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 sub-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.

(2) Where in relation to a person referred to in paragraph 3(2)(b) or (c), a break occurs in his or her full-time instruction or training, then unless the Minister otherwise directs, he or she shall, for the duration of such break, be regarded as having ceased to be a child for the purposes of this Scheme.

Children’s Pensions; rate and mode of payment.

7. (1) A children’s pension under this Scheme will be paid to the mother or step-parent of the children if the eligible children are in her care, and in case any child in respect of whom a pension is payable is not in such care, the pension will be paid either to the child or to such other person as the Minister may determine. If the children are in the care of more than one person, different parts of the children’s pension will be paid to those persons in such proportions as the Minister may determine.

(2) In all cases, the pension is to be applied for the benefit of the children for whom it is granted.

(3) A children’s pension may be paid only in relation to the period or periods subsequent to the date of death of the Commissioner.

(4) The rate of children’s pension under this Scheme shall be—

(a) where the Commissioner leaves no spouse or, if he leaves a spouse and the spouse dies, after his death,

(i) where there is only one child, one-third of the deceased’s pension,

(ii) where there are two or more children, a rate in respect of each child equivalent to one-half of the deceased’s pension divided by the number of children.

(b) subject to paragraph 7(5), where the Commissioner leaves a spouse,

(i) where there are not more than three children, one-sixth of the deceased’s pension for each child,

(ii) where there are more than three children, a rate in respect of each child equivalent to one-half of the deceased’s pension divided by the number of children.

(5) (a) Where the children of the Commissioner are at the time of, or at any time after, his death in the care of some person other than the spouse or step-parent, the Minister may, if he or she thinks fit, direct that for so long as they are in such care, paragraph 7(4)(a) shall apply notwithstanding that the spouse is still alive, and in case the Minister so directs this subparagraph shall be construed and shall have effect in accordance with the direction.

(b) Where some but not all of the children of the Commissioner are at the time of, or at any time after, his death in the care of a person other than the spouse or step-parent, 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 the rates specified in paragraph 7(4)(a); provided that the amount of the children’s pension payable in respect of the Commissioner shall not exceed one-half of the rate of the deceased’s pension.

(6) Notwithstanding the foregoing provisions of this paragraph, where the Commissioner leaves a spouse and no spouse’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 pension shall be payable under this Scheme to the children of that spouse as respects any period comprised within the lifetime of the spouse or within the time in respect of which no spouse’s pension is payable, as may be appropriate, unless the Minister in his or her absolute discretion directs that such a pension shall be so payable, and in case the Minister gives a direction under this paragraph he or she may, if he or she thinks fit, further direct that paragraph 7(5) shall apply as respects any such period.

Payment of Pension.

8. Pensions payable under this Scheme shall be paid fortnightly except that where paragraph 5(5) applies in respect of the Commissioner, the Minister may decide that the amount of pension in respect of the month in question may be paid before the expiry of that month.

Periodic Contributions.

9. (1) Contributions shall be payable at the rate of one and one-half per cent of the amount of the salary from time to time payable to the Commissioner (or where he is in receipt of reduced salary because of absence from employment, of the amount of the salary that would be payable to him if he were not so absent).

(2) The contribution shall be paid in respect of the period commencing on the date of commencement and ending when he ceases to be a contributing member of the Main Scheme and at such times and in such manner as the Minister may determine.

(3) No contributions shall be payable under this Scheme by the Commissioner for any period which does not constitute pensionable service.

(4) Contributions payable under this paragraph are in this Scheme referred to as “periodic contributions”.

Refund of Contributions.

10. (1) If the Commissioner ceases to be a contributing member other than on death and on so ceasing is not eligible for the grant of a pension and retirement gratuity, or preserved pension and preserved lump sum, then, if his pensionable service is not transferred to another organisation or service, the whole of his periodic contributions shall be returned to him.

(2) A member who, on ceasing to be a contributing member, has paid periodic contributions for a period in excess of 40 years may have returned to him, or, if membership ceases due to death, to his legal personal representative, such of those contributions beginning with his initial contribution and working forward, as is necessary to secure that the period in respect of which such contributions are paid by him without being returned does not exceed 40 years.

(3) Where any contributions are returned under this paragraph they shall be returned without interest and less an amount equal to any income tax liability of the member in respect of such contributions.

(4) Where periodic contributions are returned in accordance with this paragraph to a person who subsequently becomes a member of this Scheme, he or she shall refund to the Minister the amount of the periodic contributions so returned to him, together with compound interest on that amount at the rate of six per cent per annum, with half-yearly rests from the date of payment to him.

Former Members becoming contributing members.

11. (1) Subject to paragraph 11(2), where a former member becomes a contributing member of this Scheme, any entitlement to spouse’s pension or children’s pension under this Scheme in respect of his previous membership shall cease.

(2) Where a person, on becoming a contributing member of this Scheme, had at any time previously been a member of this Scheme and had paid periodic contributions during such period of membership, the period in respect of which he or she paid such periodic contributions shall be excluded in determining the number of relevant years under paragraph 12(8) provided—

(a) no refund of those contributions is, or was, paid, or

(b) paragraph 10(4) applies.

Non-periodic Contributions.

12. (1) Where the Commissioner was married throughout the period or for a portion of the period during which this Scheme applied to him and he ceases to be liable for contributions under this scheme and such cesser is due to—

(a) death, or

(b) retirement on pension or resignation with entitlement to a preserved pension,

then, unless the number of relevant years is nil, a contribution under this paragraph shall be payable by way of reduction in the amount of his retirement gratuity or death gratuity or preserved lump sum or preserved death gratuity, or in such other manner as the Minister may require.

(2) A contribution under this paragraph shall be one per cent of the Commissioner’s retiring salary multiplied by the number of relevant years.

(3) Where a contribution under this paragraph is being deducted from a preserved lump sum or preserved death gratuity, the contribution shall be calculated by reference to an amount equal to the Commissioner’s retiring salary at date of resignation as increased by reference to pension increases granted under paragraph 9 of the Main Scheme in the interval between the date of resignation and the date—

(a) on which he attains the age at which the pension would become payable, in the case of a preserved lump sum, or

(b) of his death, in the case of a preserved death gratuity.

(4) Where, subsequent to the date on which the Commissioner ceases to be liable for contributions under this scheme, the pension payable to him or to his spouse (but not the retirement gratuity death gratuity, preserved lump sum or preserved death gratuity) falls to be increased because of an increase in the pensionable service of the Commissioner, the Minister may adjust the amount of the contribution under this paragraph to take account of the increase.

(5) At the discretion of the Minister and subject to conditions specified by the Minister, the Commissioner may elect to pay, over a period of twelve months beginning on a date specified by the Minister, being a date not earlier than the date of the election, additional contributions equal in each case to the amount of the periodic contributions payable in respect of that period and in case one or more such additional contributions are made, this paragraph shall apply to the Commissioner subject to the modification that, in calculating what is the number of relevant years, that number shall be reduced by one for every contribution made by the Commissioner under this paragraph.

(6) Where the Commissioner gave service, otherwise than as Commissioner, which is pensionable service under paragraph 5(1) of the Main Scheme, any portion of that service during which he paid periodic contributions under a scheme similar to this Scheme may, provided those contributions were not refunded to him, or having been so refunded have been repaid by him with appropriate compound interest applied, be excluded in determining the number of relevant years under this paragraph.

(7) In this paragraph, “the number of relevant years” means—

(a) in case the Commissioner who being then married, ceases to be a contributing member,

(i) if such cesser is caused otherwise than by death or retirement on medical grounds, the number of years of pensionable service which he then had,

(ii) if such cesser is due to death or retirement on medical grounds, the number of years of pensionable service which he would have if he had served to age 67, or if earlier, to the date on which his contract of employment would expire,

reduced in each case by the number of years if any, for which periodic contributions have been paid by him and are not returnable.

(b) in case the Commissioner, being then unmarried, ceases to be liable for contributions, the number of years of pensionable service which he had on the date of termination of his last marriage before such cesser, reduced by the number of years if any, for which periodic contributions have been paid by him and are not returnable.

(8) Where a person to whom paragraph 11(1) applies became a former member by retiring on pension, whether on retirement on medical grounds, or otherwise, then the contribution payable under paragraph 12(2) at the termination of his final period of contributing membership shall be reduced by the amount of the contributions paid under paragraph 12(2) when he or she became a former member, provided there was no refund of that contribution.

(9) Pensionable service in excess of 40 years shall be left out of account for the purposes of this paragraph.

Marriage of members whose early death is to be foreseen.

13. Where a member or a former member marries and—

(a) he dies within the year beginning on the date of the marriage, and

(b) there are no children born of the marriage, and

(c) the Minister is of the opinion that his death within the year beginning with the date of the marriage was, at that date, to be foreseen by him or his spouse,

for the purposes of this Scheme the marriage may be regarded by the Minister as not having taken place, and in case the marriage is so regarded all necessary adjustments (including, if need be, repayment to the Department of the sums paid in respect of pensions already granted under this Scheme) shall be made accordingly.

Duty to give information and make declaration.

14. (1) The Commissioner shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to the Commissioner.

(2) The spouse of the Commissioner shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to any application by her for a spouse’s pension or for a pension for the children of the Commissioner.

(3) A person having the care of a child of the Commissioner who applies for a children’s pension in respect of that child shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to that child.

Declarations.

15. Payment of pension under this Scheme shall be subject to the making by the spouse and, where children’s pension is not payable to the spouse, the person having the care of the children in question, of a declaration in such form and at such times as the Minister may determine.

Repayment of pensions overpaid.

16. If 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 Minister on demand such payments or excess payments, as may be appropriate, and such payments or excess payments may, in default of payment, be recoverable by the Minister as a simple contract debt in any court of competent jurisdiction.

Abatement by reference to other benefits.

17. (1) Where, either directly or indirectly, the Minister provides, or helps to provide, or contributes towards, a financial benefit for the spouse and/or children of a member, other than under

(a) this Scheme, or

(b) the provisions of the Main Scheme, or

(c) the Social Welfare Acts, or

(d) the Social Welfare (Occupational Injuries) Act 1966 ,

no award shall be made under this Scheme unless it is authorised to do so by the Minister. In authorising an award in such a case, the Minister, may adjust the amount of an award to take such account as he or she considers appropriate of the financial benefit in question.

(2) Where, arising from the application of paragraph 17(1), an award is not made under this Scheme, the whole of the periodic contributions paid by the member shall be returned to his legal personal representative and paragraph 13 of this Scheme will not apply in his case.

(3) Where, arising from the application of paragraph 17(1), the amount of an award is adjusted the Minister may return to the member’s legal personal representative such proportion of the periodic contributions paid by the member as is authorised by the Minister and may make such adjustment in any contribution which would otherwise be due under paragraph 13 of this Scheme as is authorised by the Minister.

Assignments.

18. Every assignment of, or charge on, and every agreement to assign or charge, a pension under this Scheme shall be void and, on the bankruptcy of any person entitled to a pension under this Scheme, that pension shall not pass to any trustee or other person acting on behalf of the creditors. If the pensioner becomes incapable of giving a receipt for payments due, the Minister shall have discretion to make such payments in whole or in part to such persons, including the authorities of any institution having care of the pensioner, as the Minister thinks fit, and the Minister shall be discharged from all liability in respect of any sum so paid.

Increases in Pensions.

19. Increases may be granted in such pensions under this Scheme as may be authorised from time to time by the Minister for Finance.

Cesser or Reduction of Benefit.

20. (1) If the Commissioner is dismissed or resigns or otherwise ceases to hold employment and has been guilty of misconduct involving a financial loss to the State, the Minister may, at his or her discretion, refuse or reduce any award which might otherwise be payable under this Scheme (including a refund of contributions) in order to make good such a loss.

(2) The Minister may, at his or her discretion, reduce or cease paying a pension awarded under this Scheme if the pensioner has been guilty of misconduct involving a financial loss to the State in order to make good such a loss.

Appeals.

21. If a person is aggrieved by the failure or refusal to make an award under this Scheme or by the amount of any award (including the award of pension increases) made, he or she may appeal to the Minister who shall issue a determination in accordance with Article 5(1) of the Pensions Ombudsman Regulations 2003 ( S.I. No. 397 of 2003 ).

Termination or amendment of Scheme.

22. The Minister reserves the right to amend or terminate this Scheme at any time subject to giving three months’ notice of impending changes to members of the Scheme. Benefits secured for or in respect of a member or former member prior to the date of amendment or termination will not be affected.

GIVEN under my Official Seal,

22 December 2009

ÉAMON Ó CUÍV,

Minister for Community, Rural and Gaeltacht Affairs.

EXPLANATORY NOTE

This scheme provides for the superannuation benefits of spouses and children of the Coimisinéir Teanga appointed on the 23rd day of February 2004.