S.I. No. 190/1983:

DEFENCE FORCES (PENSIONS) (AMENDMENT) (NO. 2) SCHEME, 1983.

DEFENCE FORCES (PENSIONS) (AMENDMENT) (NO. 2) SCHEME, 1983.

ARRANGEMENT OF ARTICLES.

Article

1. Short title, collective citation and construction.

2. Commencement.

3. Application of Interpretation Act, 1937.

4. Definitions.

5. Members.

6. Widows' pensions.

7. Children's pensions.

8. Deductions from pensions.

9. Contributions.

10. Refund of Contributions.

11. Reduction of pensions of widows who are in receipt of allowances under the Army Pensions Acts.

12. Reduction of pensions of children who are in receipt of allowances under the Army Pensions Acts.

13. Provision against payment of double benefit.

Schedule.

S.I. No. 190 of 1983.

DEFENCE FORCES (PENSIONS) (AMENDMENT) (NO. 2) SCHEME, 1983.

I, PATRICK COONEY, Minister for Defence, in exercise of the powers conferred on me by sections 2 , 3 and 5 of the Defence Forces (Pensions) Act, 1932 (No. 26 of 1932), and by section 4 of the Defence Forces (Pensions) Act, 1938 (No. 33 of 1938), as adapted by the Public Service (Transfer of Departmental Administration and Ministerial Functions) Order, 1973 ( S.I. No. 294 of 1973 ), hereby, with the consent of the Minister for the Public Service, make the following Scheme:

1. (1) This Scheme may be cited as the Defence Forces (Pensions) (Amendment) (No. 2) Scheme, 1983.

(2) The collective citation, the Defence Forces (Pensions) Schemes, 1937 to 1983, shall include this Scheme.

(3) The Defence Forces (Pensions) Schemes, 1937 to 1983, shall be construed together as one Scheme.

2. This Scheme shall be deemed to have come into force on the 23rd day of July, 1968.

3. The Interpretation Act, 1937 (No. 38 of 1937), applies to this Scheme.

4. In this Scheme--

"adoption order" means an adoption order made under the Adoption Act, 1952 (No. 25 of 1952);

"contributing member" means a member who is serving as a commissioned male officer of the Permanent Defence Force;

"pensionable pay" means the annual rate of pay, including any professional or additional pay payable to a special service officer (within the meaning of Article 13 of the Principal Scheme) appropriate to the member's rank--

( a ) at the time of death, or

( b ) for the purposes of the calculation of such member's retired pay,

as the case may be, as adjusted from time to time and reflected in the Schemes or in any amendment thereto which provide for increases in retired pay which form part of a general increase in pensions payable in respect of public service;

"the Principal Scheme" means the Defence Forces (Pensions) Scheme 1937 ( S. R. & O. No. 249 of 1937 );

"the Schemes" means the Defence Forces (Pensions) Schemes, 1937 to 1983.

5. The following persons shall be members of this Scheme--

( a ) any male person who is commissioned as an officer of the Permanent Defence Force on or after the 1st day of January, 1971,

( b ) any male person who served as an officer of the Permanent Defence Force during the period which commenced on the 23rd day of July, 1968, and ended on the 31st day of December, 1970, and who--

(i) elected, before the 1st day of January, 1972, to join the Scheme, notwithstanding that he may have previously opted out of the Scheme, or

(ii) died before the 1st day of January, 1972, and in respect of whom an election to join the Scheme was made before the 1st day of January, 1972, notwithstanding that he himself may have previously opted out of the Scheme.

6. (1) Subject to the provisions of this Scheme there may be granted to the widow of a deceased member a pension equal to--

( a ) in case the member dies while in receipt of retired pay under the Schemes, and his retirement was on grounds other than ill-health, one half of his annual retired pay, subject to a maximum pension of one-quarter of the annual rate of his pensionable pay, or

( b ) in case the member--

(i) dies while in receipt of retired pay and his retirement was on the grounds of ill-health;

(ii) died before the 1st day of October, 1976, before qualifying for the grant of retired pay, with not less than five years' pensionable service;

(iii) died on or after the 1st day of October, 1976, before qualifying for the grant of retired pay;

one-half of his accrued retired pay which will be calculated by crediting him with the amount of pensionable service, including service in the rank, which he would have had if he had served in his rank to the retiring age prescribed for that rank in Defence Force Regulations, subject to a maximum pension of one-quarter of his pensionable pay at the date of his death.

(2) Notwithstanding sub-articles 1 (a) and 1 (b) of this Article, where a member of this Scheme dies on or after the 1st day of October, 1976, the rate of pension payable to his widow may, in respect of the first month after his death, be increased to--

( a ) in case he dies while in receipt of retired pay, and the rate of his retired pay is greater than the rate of pension which would otherwise be payable to his widow under this Scheme, one-twelfth of the rate of his retired pay, or

( b ) in case he dies before qualifying for retired pay, one-twelfth of the rate of his pensionable pay,

provided that the rate as so increased shall be reduced by the rate of any children's pensions payable under this Scheme.

(3) The amount payable to a widow, under sub-article (2) of this Article, in respect of the period of the first month after the death of the deceased member may be paid at any time on or after the first day of that period.

(4) A pension shall not be payable to the widow of a member of this Scheme--

( a ) if, at the time of the death of the member or at any time subsequent to his death, she is cohabiting with another person as man and wife, or

( b ) if she re-marries.

(5) Notwithstanding that a pension is not granted under this Article or ceases to be payable under sub-article (4) of this Article, the Minister may, if he is satisfied that the re-marriage or cohabitation has come to an end, or that there are compassionate grounds for the payment of the pension, grant or restore the pension--

( a ) in case the re-marriage or cohabitation has terminated, from the date of the termination, or

( b ) in any other case, from a date not earlier than the date on which the application for the restoration was received.

(6) Every pension granted or restored under sub-article (5) of this Article shall be subject to such conditions as the Minister may determine.

7. (1) Subject to the provisions of this Scheme there may, during the period from the date of the commencement of the Scheme to the 30th day of September, 1976, be granted in respect of each child of a deceased member, a pension of an amount equal to--

( a ) where the child's mother is alive, one-sixth of the widow's pension, for the first child plus a further one-sixth of the widow's pension for each additional child up to a fifth additional child,

( b ) after the death of the child's mother, two-sixths of the amount of pension which the widow would have obtained, had she lived, for the first child plus a further one-sixth for each additional child up to a fourth additional child.

(2) On and after the 1st day of October, 1976, the rate of children's pension under this Scheme shall be--

( a ) where the child's mother is alive, one-third of the widow's pension for the first child plus a further one-third for each additional child up to a second additional child,

( b ) after the death of the child's mother, two-thirds of the amount of pension which the widow would have obtained, had she lived, for the first child plus a further one-third for a second child.

(3) For the purpose of this Article "child" means a legitimate or legitimised child or a step-child of a member of this Scheme or a child lawfully adopted by such member and his wife who--

( a ) is under 16 years of age, or

( b ) is under 21 years of age, and

(i) is receiving full-time instruction at any university, college, school or other educational establishment, or

(ii) is undergoing full-time instruction or training by any person for any vocation, profession or trade, being instruction or training approved by the Minister for the purposes of this Scheme, or

( c ) is incapable of self-support by reason of permanent mental or physical infirmity and who, when his permanent infirmity first occurred was a child within the meaning of sub-article (3) (a) or (b) of this Article, provided that where he reached the age of 21 years prior to the 1st day of October, 1976, he shall not be considered to be a child during the period which commenced on the day he reached the age of twenty-one years and ended on the 30th day of September, 1976.

(4) Any reference in this Scheme to an adopted child of a member of this Scheme shall be construed as a reference to a child adopted by him (whether alone or jointly with any other person) either pursuant to 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, and reference to lawfully adopted children shall be construed accordingly.

(5) Where a member of this Scheme applies, before the termination of his contributing membership, for an adoption order in respect of a child and dies before the adoption order has been made, and the child is subsequently adopted by the member's widow, the child shall, from the date on which the member had custody of him, be deemed, for the purposes of this Scheme, to be such member's duly adopted child.

(6) A pension shall not be payable under this Scheme in respect of a child who--

( a ) was not wholly or mainly dependent on a member of this Scheme immediately prior to such member's death,

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

( c ) is, while undergoing full-time instruction or training, in receipt of emoluments which, in the opinion of the Minister, render him self-supporting.

(7) Notwithstanding anything contained in sub-articles (6) (a), (6) (b) or (6) (c) of this Article, the Minister may, on grounds of compassion, direct that a pension be paid to a child specified in these sub-articles from a specified date and for so long as he may consider proper.

(8) A pension shall not be granted under this Scheme in respect of a child if--

( a ) the member of the Scheme remained unmarried during the period commencing on the 23rd day of July, 1968, or the date on which the Scheme first applied to him (whichever is the later), and ending on the date on which he ceased to be a contributing member, or

( b ) the child was conceived after such member ceased to be a contributing member.

(9) A pension shall not be granted under this Scheme in respect of an adopted child if the child was adopted by the member of the Scheme after--

(i) the date of termination of such member's last marriage, or

(ii) the date on which such member ceased to be a contributing member,

whichever was the earlier.

(10) A pension shall not be granted under this Scheme in respect of a step-child of a member of this Scheme if such member's marriage to the child's mother took place after the member's last day of pensionable service.

(11) Children's pensions under this Scheme shall be paid to the member's widow if the eligible children are in her care and in case any eligible child is not in such care, the pension may be paid to such other person or persons and in such proportions as the Minister may determine. In every case, the children's pension payable under this Scheme shall be applied for the benefit of the children for whom it is granted.

(12) When any child of a member is at the time of, or at any time after, his death in the care of a person other than his widow, irrespective of whether the widow is alive or not, the rate of the portion of the child's pension which is payable in respect of any child while in the care of that person may be calculated by reference to the rates specified in sub-articles 7 (1) (b) or 7 (2) (b) of this Scheme, whichever is appropriate.

(13) Notwithstanding anything contained in this Article, where a member dies and is survived by a widow and no widow's pension is granted to her under this Scheme or, if a widow's pension is granted to her and it ceases to be paid before her death, no children's pension shall be payable under this Scheme in respect of any period within the lifetime of the widow or within the time in respect of which no widow's pension is payable, as the case may be, unless the Minister in his absolute discretion directs that such a pension shall be so payable. In case the Minister gives a direction under this sub-article he may, if he thinks fit, further direct that sub-articles (11) and (12) of this Article shall apply in respect of any such period.

(14) A child shall not be eligible for a pension in respect of more than one member. Where a child would, apart from this sub-article, be eligible for a pension in respect of two or more members, the child shall be treated under this Scheme in the way which, in the opinion of the Minister, will give the most favourable benefit for the child.

8. (1) There may be deducted from any pension payable to a widow under Article 6 of this Scheme, any overpayment of pay or retired pay, as the case may be, which has been made to the widow's former husband.

(2) Whenever a deduction is to be made from a pension pursuant to sub-article (1) of this Article, payment of the pension may be withheld until the amount of the deduction has been ascertained.

9. (1) Contributions shall be payable by a member of this Scheme as follows:

( a ) periodic contribitnons at the rate of one and one-half percent of the pensionable pay from time to time payable to him (or where he is in receipt of reduced pay because of absence from employment, of the amount that would be payable to him if he were not so absent) shall be deducted from his pay with effect from the 1st day of January, 1971, or the date of his joining the Scheme, whichever is the later, and shall continue to be deducted until he ceases to be a contributing member,

( b ) a further contribution of a percentage of pay at the date of retirement or death in service shall be made, where necessary, from the gratuity payable under the Schemes. The deduction to be made will be calculated in accordance with the Rules set out in the Schedule to this Scheme.

(2) At the discretion of the Minister and subject to conditions specified by him, a member of this Scheme 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 contributions from pay payable in respect of that period and in case one or more such additional contributions is or are made, this Article shall apply to such member subject to the following modification, namely, in calculating what is the number of relevant years, that number shall be reduced by one for every yearly contribution made by the member under this sub-article.

(3) No contributions shall be payable under this Scheme by a member of the Scheme in relation to any period which does not constitute pensionable service.

10. (1) Where a contributing member--

( a ) retires, or is retired, and was unmarried throughout his membership of this Scheme, or

( b ) retires, or is retired, and is married but does not qualify for the grant of retired pay, or

( c ) died in service before the 1st day of October, 1976, and had less than five years' pensionable service,

then, if his pensionable service cannot be transferred to another organisation or service, the whole of his periodic contributions shall be refunded.

(2) Subject to sub-article (3) of this Article, where a contributing member other than a person mentioned in sub-article (1) of this Article retires, is retired or dies in service, there may be refunded in his case such of the contributions, beginning with the initial contribution, as will secure that the period in respect of which contributions are paid by him--

( a ) does not exceed forty years, and

( b ) is an exact number of years.

(3) Where the wife of a contributing member dies and he has not remarried at the time of his ceasing to be a contributing member, there may be refunded in his case such of the contributions, beginning with the final contribution, as will secure that the period in respect of which contributions are paid by him does not exceed a period equal to the length of his pensionable service at the date of his wife's death.

(4) Where any contributions are refunded under this Article, interest shall not be payable in respect of any such refundment.

11. (1) Where the widow of a contributing member is eligible for a pension under this Scheme and is also entitled to an allowance under sections 14 or 15 of the Army Pensions Act, 1927 (No. 12 of 1927), subsection (5) of section 7 of the Army Pensions Act, 1962 (No. 22 of 1962), or sections 3 or 11 of the Army Pensions Act, 1968 (No. 12 of 1968), the amount payable to her on foot of the pension and allowance shall not exceed one-third of the deceased member's pensionable pay at the time of his retirement (if he died after retirement) or death (if he died while serving).

(2) Where the allowance payable under the Army Pensions Acts, 1923 to 1980, exceeds one-third of the deceased member's pensionable pay at the date of retirement or death no widow's pension shall be payable under this Scheme and all the contributions paid by the deceased member shall be refunded.

(3) Where, in accordance with sub-article (1) of this Article, a portion of a widow's pension under this Scheme is payable in addition to a widow's allowance under the Army Pensions Acts, 1923 to 1980, so much of the deceased member's contributions shall be refunded as the Minister, with the consent of the Minister for the Public Service, may determine.

12. (1) Where the children of a contributing member are eligible for pensions under this Scheme and are also entitled to allowances under sections 14 or 15 of the Army Pensions Act, 1927 (No. 12 of 1927), subsection (5) of section 7 of the Army Pensions Act, 1962 (No. 22 of 1962), or sections 3 or 11 of the Army Pensions Act, 1968 (No. 12 of 1968), the amount payable in respect of the children on foot of the pensions and allowances shall not exceed one-third of the deceased member's pensionable pay at the date of his retirement (if he died after retirement) or death (if he died while serving).

(2) Notwithstanding anything contained in sub-article (1) of this Article, where the allowances under the Army Pensions Acts as outlined in sub-article (1) of this article, in respect of a deceased member's children exceed one-third of his pensionable pay, the allowance may be paid in full and no pension shall be payable in respect of the children under this Scheme.

13. A pension shall not be payable under this Scheme to a widow or to a child of a deceased member if an allowance is granted to the widow or to the child under Section 5 of the Army Pensions Act, 1980 (No. 21 of 1980).

SCHEDULE.

Rules for calculating the contribution to be deducted

from the gratuity payable to a member of this Scheme.

1. Where the wife of a member of this Scheme is alive at the time of his retirement or death in service, calculate the percentage which the husband's--

(i) actual retired pay on retirement, or

(ii) accrued retired pay determined in accordance with sub-article 6 (1) (b) of this Scheme, if his death occurs while serving, or while in receipt of retired pay and his retirement was on the grounds of ill health,

represents of his pensionable pay at the date of his death or retirement and multiply the resulting percentage by four-fifths. From the result so obtained (calculated to the nearest one place of decimals) but subject to a limit of forty, deduct the number of complete years during which deductions from pay were made and the balance shall represent the percentage of pensionable pay at the date of death or retirement which must be deducted from the gratuity payable under the Defence Forces (Pensions) Schemes, 1937 to 1983.

2. Where the wife of a member of this Scheme is dead at the time of his retirement or death in service, the number of complete years of pensionable service which he had at the time of his wife's death shall be divided by the number of complete years of pensionable service--

(i) which he had at the time of his retirement, or

(ii) if he dies while serving, which he would have had if he had survived to the normal retiring age for the rank held by him at the time of his death,

and the result multiplied by forty. From the figure so obtained (calculated to nearest one place of decimals) shall be deducted the number of complete years during which he made contributions from pay and the balance shall represent the percentage of his pensionable pay at the date of retirement or death which must be deducted from the gratuity payable under the Defence Forces (Pensions) Schemes, 1937 to 1983.

GIVEN under my Official Seal, this 5th day of July, 1983.

PATRICK COONEY.

The Minister for the Public Service hereby consents to the making of the foregoing Scheme.

GIVEN under the Official Seal of the Minister for the Public Service this

5th day of July, 1983.

JOHN BOLAND.

EXPLANATORY NOTE.

This Statutory Instrument provides pensions for the widows and children of certain officers serving in the Permanent Defence Force on or after 23 July, 1968.