S.I. No. 167/1991:

DEFENCE FORCES (PENSIONS) (AMENDMENT) (No. 2) SCHEME, 1991.

DEFENCE FORCES (PENSIONS) (AMENDMENT) (No. 2) SCHEME, 1991.

ARRANGEMENT OF ARTICLES.

Article

1. Short title, collective citation and construction.

2. Commencement.

3. Application of Interpretation Act, 1937, and interpretation.

4. Definitions.

5. Members.

6. Widows' pensions.

7. Children's pensions.

8. Marriages after discharge.

9. Marriages of members whose early death is to be foreseen.

10. Duty to give information and make declarations.

11. Repayment of pensions overpaid.

12. Deductions from pensions.

13. Contributions.

14. Refund of contributions.

15. Reduction of pensions of widows who are in receipt of allowances under the Army Pensions Acts, 1923 to 1980.

16. Reduction of pensions of children who are in receipt of allowances under the Army Pensions Acts, 1923 to 1980.

17. Provision against payment of double benefit.

18. Ex gratia pensions for certain widows and children.

19. Interest not to be payable in respect of refundment of contributions.

20. Increases in pensions.

Schedule.

S.I. No. 167 of 1991.

DEFENCE FORCES (PENSIONS) (AMENDMENT) (No. 2) SCHEME, 1991.

I, BRENDAN DALY, 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) (Amendment) Act, 1938 (No. 33 of 1938), hereby, with the consent of the Minister for Finance, make the following scheme:

1. (1) This Scheme may be cited as the Defence Forces (Pensions) (Amendment) (No. 2) Scheme, 1991.

(2) The collective citation, "the Defence Forces (Pensions) Schemes, 1937 to 1991," shall include this Scheme.

(3) The Defence Forces (Pensions) Schemes, 1937 to 1991, shall be construed together as one Scheme.

2. This Scheme shall be deemed to have come into operation on the 1st day of June, 1977.

3. (1) Subject to sub-article (2) of this Article, the Interpretation Act, 1937 (No. 38 of 1937), applies to this Scheme.

(2) Section 11 (b) of the said Act shall not apply or have effect in relation to paragraphs (a), (b), (c), (d) and (e) of Article 5 of this Scheme.

(3) In this Scheme, other than in paragraphs (f), (g) and (h) of Article 5, every word importing the feminine gender shall be construed as if it also imported the masculine gender.

4. (1) In this Scheme--

"adoption order" means an adoption order made under the Adoption Acts, 1952 to 1988;

"contributing member" means a member of this Scheme who is serving as a soldier;

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

"qualifying service" has the same meaning as in Article 24 of the Principal Scheme;

"the Schemes" means the Defence Forces (Pensions) Schemes, 1937 to 1991;

"soldier" means a non-commissioned officer or private of the Permanent Defence Force but does not include a cadet.

(2) In this Scheme--

( a ) References to the pay of a member at the date of his death small be construed in accordance with Article 6 (2) of the Defence Forces (Pensions) (Amendment) (No. 3) Scheme, 1972 ( S.I. No. 306 of 1972 ); and

( b ) references to the pay of a member at the date of his discharge shall be construed in accordance with Article 27 (4) of the Principal Scheme (inserted by Article 7 of the Defence Forces (Pensions) (Amendment) (No. 3) Scheme, 1984 ( S.I. No. 113 of 1984 )).

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

( a ) subject to paragraph (b) of this sub-article, any male person who was enlisted or re-enlisted as a soldier during the period which commenced on the 1st day of February, 1978, and ended on the 31st day of May, 1985;

( b ) any male person who, during the period which commenced on the 1st day of November, 1983, and ended on the 31st day of May, 1985, was re-enlisted as a soldier immediately following his discharge and who had previously opted out of the Scheme provided that, on his re-enlistment, he elected to join the Scheme;

( c ) any male person who was serving as a soldier both on, and immediately prior to, the 1st day of February, 1978, and who did not opt out of the Scheme before the 1st day of July, 1978;

( d ) any male person who was discharged as a soldier during the period which commenced on the 1st day of June, 1977, and ended on the 31st day of January, 1978, who was granted a pension under Part III of the Principal Scheme, and who elected, before the 1st day of July, 1978, to join the Scheme, notwithstanding that he may have previously opted out of the Scheme;

( e ) any male person who served as a soldier at any time during the period which commenced on the 1st day of June, 1977 and ended on the 31st day of January, 1978, and who, during that period, died while so serving or while in receipt of a pension granted to him under Part III of the Principal Scheme and in respect of whom an election to join the Scheme was made before the 1st day of July, 1978, notwithstanding that he himself may have previously opted out of the Scheme;

( f ) subject to paragraph (g) of this sub-article, any female person who was enlisted or re-enlisted as a soldier during the period which commenced on the 1st day of January, 1985, and ended on the 31st day of May, 1985;

( g ) any female person who, during the period which commenced on the 1st day of January, 1985, and ended on the 31st day of May, 1985, was re-enlisted as a soldier immediately following her discharge and who had previously opted out of the Scheme provided that, on her re-enlistment, she elected to join the Scheme;

( h ) any female person who was serving as a soldier both on, and immediately prior to, the 1st day of January, 1985, and who did not opt out of the Scheme before the 16th day of February, 1985.

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 a pension under Part III of the Principal Scheme, and was not discharged on the grounds of disability, one-half of his pension (excluding the additional increase specified in Table II to Article 26A of the Principal Scheme), or

( b ) in case the member dies in service or while in receipt of a pension under Part III of the Principal Scheme having been discharged on the grounds of disability, one-half of his accrued pension (excluding the additional increase specified in Table II to Article 26A of the Principal Scheme) which will be calculated by crediting him with the amount of qualifying service which he would have had if he had served in his rank to the age of 60 years.

(2) Notwithstanding sub-article (1) of this Article, the rate of pension payable to a deceased member's widow may, in respect of the first month after his death, be increased to--

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

( b ) in case he dies in service, one-twelfth of the annual rate of his pay at the date of death,

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 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-third of the widow's pension for the first child and a further one-third of the widow's pension 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 and a further one-third for a second child.

(2) 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 paragraph (a) or (b) of this sub-article.

(3) 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 references to lawfully adopted children shall be construed accordingly.

(4) 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.

(5) 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.

(6) Notwithstanding anything contained in sub-article (5) of this Article, the Minister may, on grounds of compassion, direct that a pension be paid to a child specified in that sub-article from a specified date and for so long as he may consider proper.

(7) 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 1st day of June, 1977, 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.

(8) 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.

(9) 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 qualifying service.

(10) 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.

(11) 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-article (1) (b) of this Article.

(12) 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 (10) and (11) of this Article shall apply in respect of any such period.

(13) 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. For the purposes of this Scheme, any marriage of a member which takes place after he has ceased to be a contributing member shall not be taken into account and any reference to a marriage, a wife, the widow, or a child or children shall be construed accordingly.

9. Where a 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 wife,

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 Minister of sums paid in respect of pensions already granted under this Scheme and refunds of contributions made under this Scheme) shall be made accordingly.

10. (1) A member shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to the member.

(2) The widow or personal representative of a deceased member shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to her or any children of that member.

(3) A person having the care of a child of a deceased member shall give to the Minister such information as is necessary for the proper operation of this Scheme in relation to that child.

(4) Payment of pension under this Scheme shall be subject to the making by the widow, or where children's pensions are not payable to the widow, the person having the care of the children in question, of such declaration as the Minister considers necessary, and a person to whom any such payment may be made shall not be entitled to receive such payment if he fails to make any such declaration.

11. 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 person is dead, his personal representative, shall pay to the Minister on demand such payments or excess payments, as may be appropriate, and such payments or excess payments shall in default of payment be recoverable by the Minister as a simple contract debt in any court of competent jurisdiction.

12. (1) There may be deducted from any pension payable to a widow under Article 6 of this Scheme, any overpayment of pay or pension, 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.

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

(a) periodic contributions at the rate of one and one-half per cent of four times the maximum rate of widow's pension from time to time appropriate to his rank shall be deducted from his pay with effect from the 1st day of February, 1978, in the case of a male member or the 1st day of January, 1985 in the case of a female member 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 four times the annual rate of widow's pension appropriate to his case at the date of his discharge 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 periodic contributions equal in each case to the amount of the periodic contributions from pay payable under paragraph (a) of the preceding sub-article in respect of that period. In case one or more such additional periodic contributions is or are made, the percentage of pay to be deducted under paragraph (b) of the preceding sub-article shall be reduced by one for each additional yearly contribution made by the member under this sub-article.

14. (1) Where a contributing member--

(a) ceases to be a contributing member and was unmarried throughout his membership of this Scheme, or

(b) is discharged and is married or was married at any time during his membership of this Scheme but does not qualify for the grant of a pension,

then, if his pensionable service is not 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 is discharged 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 does not exceed thirty-one 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 number of contributions paid by him does not exceed the total number of contributions required in his case by the application of the formula set out in the first sentence of Rule 2 of the Schedule to this Scheme.

15. (1) Where the widow of a deceased member is eligible for a pension under this Scheme and is also entitled to an allowance under section 14 or 15 of the Army Pensions Act, 1927 (No. 12 of 1927), section 7 (5) of the Army Pensions Act, 1962 (No. 22 of 1962), or section 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 pay at the date of his discharge (if he died after discharge) or death (if he died in service), as increased from time to time and reflected in the rates of pension payable to soldiers under the Schemes.

(2) Where the allowance payable under the Army Pensions Acts, 1923 to 1980, exceeds one-third of the deceased member's pay at the date of discharge 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 Finance, may determine.

16. (1) Where the children of a deceased member are eligible for pensions under this Scheme and are also entitled to allowances under section 14 or 15 of the Army Pensions Act, 1927 (No. 12 of 1927), section 7 (5) of the Army Pensions Act, 1962 (No. 22 of 1962), or section 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 pay at the date of his discharge (if he died after discharge) or death (if he died in service), as increased from time to time and reflected in the rates of pension payable to soldiers under the Schemes.

(2) Where the allowances under the Army Pensions Acts in respect of a deceased member's children exceed one-third of his pay at the date of discharge or death, no children's pension shall be payable in respect of the children under this Scheme.

17. A pension shall not be payable under this Scheme to the 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).

18. (1) The Minister may grant to the widow (provided she has not remarried) and to the children (if any) of a soldier who, prior to the 1st day of June, 1977,--

(a) was discharged and was granted a pension under Part III of the Principal Scheme,

(b) was discharged on the grounds of disability with not less than five but less than fifteen years' qualifying service and was granted a gratuity under the Schemes,

(c) died in service with not less than five years' qualifying service,

a pension of such amount as may be determined by the Minister.

(2) The provisions of this Scheme shall apply to a pension granted under this Article as they apply in relation to a pension granted under Article 6 or 7 of this Scheme.

(3) Every pension granted under this Article shall be payable from--

(a) the 1st day of January, 1978, or

(b) the day following the deceased's death, whichever is the later.

19. Where any contributions are refunded under the provisions of this Scheme, interest shall not be payable in respect of any such refundment.

20. Pensions granted under this Scheme shall be increased by such amounts as may be authorised from time to time by the Minister.

Article 13

SCHEDULE

Rules for calculating the contribution to be deducted from the gratuity payable to or in respect of a member of this Scheme.

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

(i) actual pension (exclusive of the additional increase specified in Table II to Article 26A of the Principal Scheme) on discharge, or

(ii) Accrued pension (exclusive of the additional increase specified in Table II to Article 26A of the Principal Scheme) determined in accordance with sub-article (1) (b) of Article 6 of this Scheme, if he dies in service, or his discharge is on the grounds of disability and he is granted a pension,

represents of his pay at the date of his death or of his pay at the date of his discharge (as the case may be) 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 thirty-one deduct the number of years during which he made contributions from pay and the balance shall represent the percentage of four times the annual rate of widow's pension appropriate to his case at the date of death or discharge which must be deducted from the gratuity payable under the Schemes.

2. Where the wife of a member of this Scheme is dead at the time of his discharge or death in service (having been alive for a portion of the period during which he was a member of this Scheme), the number of complete years of qualifying service which he had at the time of his wife's death shall be divided by the number of complete years of qualifying service--

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

(ii) if he dies while serving, which he would have had if he had survived to the age of 60 years,

and the result multiplied by a number equal to the percentage figure which would be obtained in his case by the application of the formula set out in the first sentence of Rule 1 of this Schedule if his wife were alive at the time of his discharge or death in service. From the figure so obtained calculated to the nearest one place of decimals) shall be deducted the number of years during which he made contributions from pay and the balance shall represent the percentage of four times the annual rate of widow's pension appropriate to his case at the date of discharge or death which must be deducted from the gratuity payable under the Schemes.

GIVEN under my Official Seal, this 25th day of June, 1991.

BRENDAN DALY,

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

GIVEN under the Official Seal of the Minister for Finance, this 25th day of June, 1991.

ALBERT REYNOLDS.

EXPLANATORY NOTE.

This Statutory Instrument provides pensions for the widows and children of certain non-commissioned officers and privates serving in the Permanent Defence Force on or after the 1st June, 1977.