S.I. No. 169/1991:

DEFENCE FORCES (PENSIONS) (AMENDMENT) (No. 4) SCHEME, 1991.

DEFENCE FORCES (PENSIONS) (AMENDMENT) (No. 4) SCHEME, 1991.

ARRANGEMENT OF ARTICLES.

Article

1. Short title, collective citation and construction.

2. Commencement.

3. Application of Interpretation Act, 1937.

4. Interpretation.

5. Members.

6. Widows' pensions.

7. Children's pensions.

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

9. Duty to give information and make declarations.

10. Repayment of pensions overpaid.

11. Deductions from pensions.

12. Contributions.

13. Refund of contributions.

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

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

16. Provision against payment of double benefit.

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

18. Increases in pensions.

19. Modification of provision for grant of ex gratia pensions.

Schedule.

S.I. No. 169 of 1991.

DEFENCE FORCES (PENSIONS) (AMENDMENT) (No. 4) 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. 4) 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 September, 1984.

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

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 Original Scheme" means the Defence Forces (Pensions) (Amendment) (No. 2) Scheme, 1991;

"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 shall 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 )).

(3) In this Scheme, unless the contrary intention appears, every word importing the feminine gender shall be construed as if it also imported the masculine gender.

(4) For the purposes of this Scheme, section 3 of the Status of Children Act, 1987 (No. 26 of 1987), shall apply and have effect as if it were part of the Defence Forces (Pensions) Act, 1932 .

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

(a) subject to paragraphs (b), (c) and (d) of this sub-article, any person who is enlisted or re-enlisted as a soldier on or after the 1st day of June, 1985;

(b) any person who, after the 1st day of June, 1985, is 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 elects to join the Scheme;

(c) any person who, during the period which commenced on the 25th day of October, 1985, and ended on the 24th day of January, 1986, was enlisted as a soldier immediately following his discharge from the Reserve of Men (First Line) provided that, on his enlistment, he was not less than 39 years of age and that he elected to join the Scheme;

(d) any person who, during the period which commenced on the 1st day of January, 1989, and ended on the 30th day of June, 1989, was enlisted as a soldier immediately following his discharge from the Reserve of Men (An Forsa Cosanta Áitiúil) provided that, on his enlistment, he was not less than 39 years of age and that he elected to join the Scheme;

(e) any person who was serving as a soldier both on, and immediately prior to, the 1st day of June, 1985, and who elected before the 30th day of September, 1985, to join the Scheme, notwithstanding that he may have previously opted out of the Scheme or the Original Scheme;

(f) any person who was serving as a soldier both on, and immediately prior to, the 1st day of June, 1985, and who, before the 30th day of September, 1985, had not elected to join the Scheme provided that, during the period which commenced on the 1st day of July, 1987, and ended on the 30th day of November, 1987, he elected to join the Scheme;

(g) any person who was discharged 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 May, 1985, and who was granted a pension under Part III of the Principal Scheme provided that--

(i) in the case of a soldier who was a member of the Original Scheme and whose wife was alive at the time of his discharge, he did not opt out of this Scheme;

(ii) in the case of a soldier--

(I) who was a member of the Original Scheme, and

(II) who was unmarried at the time of his discharge, and

(III) who married or remarried after his discharge, and

(IV) whose wife was alive on the 1st day of May, 1985,

he elected before the 30th day of September, 1985, to join this Scheme;

(iii) in the case of a soldier--

(I) who was a member of the Original Scheme, and

(II) who was unmarried at the time of his discharge, and

(III) who marries or remarries after the 1st day of May, 1985,

he elects to join this Scheme within three months of the date of his marriage or remarriage and that he had not previously opted out of this Scheme;

(iv) in the case of a soldier--

(I) who opted out of the Original Scheme, and

(II) whose wife was alive on the 1st day of May, 1985 (irrespective of whether his marriage took place before or after his discharge),

he elected before the 30th day of September, 1985, to join this Scheme;

(v) in the case of a soldier--

(I) who opted out of the Original Scheme, and

(II) who marries or re-marries after the 1st day of May, 1985,

he elects to join this Scheme within three months of the date of his marriage or remarriage and that he had not previously opted out of this Scheme;

(h) any 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 May, 1985, and who, during that period, died while so serving or while in receipt of a pension under Part III of the Principal Scheme and in respect of whom an election to join this Scheme was made before the 30th day of September, 1985, notwithstanding that he himself may have opted out of this Scheme or the Original Scheme.

(2) On his becoming a member of this Scheme, a person shall cease to be a member of the Original Scheme and no benefits shall be payable under the Original Scheme in respect of him.

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 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 child or a step-child of a member of this Scheme, or a child lawfully adopted by such member, and 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 or to a person by whom another person has been adopted shall be construed accordingly.

(4) Where a member of this Scheme applies 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) 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.

(8) 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.

(9) 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 (7) and (8) of this Article shall apply in respect of any such period.

(10) 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. 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.

9. (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.

10. 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.

11. (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.

12. (1) Contributions shall be payable by a contributing member of this Scheme who is mentioned in Article 5 (1) (other than paragraphs (g) and (h)) 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 June, 1985, or the date of his becoming a member of the Scheme, whichever is the later, and shall continue to be deducted until he ceases to be a contributing member, and

( b ) further contributions 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, by way of deduction from the gratuity payable to or in respect of him under the Schemes. The contributions to be deducted shall be calculated in accordance with Rule 1 or 2 of the Schedule to this Scheme.

(2) The provisions of paragraph (b) of sub-article (1) of this article shall not apply to a member who was unmarried throughout his membership of this Scheme and of the Original Scheme.

(3) The contribution arrangements applicable to or in respect of a member who is mentioned in paragraph (g) or (h) of Article 5 (1) of this Scheme shall be such as the Minister shall determine.

(4) All contributions paid by a member of this Scheme under the Original Scheme (other than those which were refunded to him) shall be deemed to be contributions paid under this Scheme.

(5) At the discretion of the Minister and subject to conditions specified by him, a contributing 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 contribution from pay payable in respect of that period.

13. (1) Where a contributing member is discharged but not not qualify for the grant of a pension, then, if his qualifying service is not transferred for pension purposes to another organisation or service, the whole of his periodic contributions shall be refunded.

(2) 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.

14. (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.

15. (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.

16. 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).

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

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

19. (1) Article 18 of the Original Scheme is hereby amended by the substitution of the following sub-articles for sub-article (2):

"(3) Subject to sub-article (3) of this Article, the provisions of this Scheme (other than Articles 7 (7), (8) and (9) and 8) 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) In its application, by virtue of sub-article (2) of this Article, to a pension granted under this Article, Article 7 of this Scheme shall be read as if there were deleted--

( a ) in sub-article (2) "legitimate or legitimised" and "and his wife", and

( b ) in sub-article (4) "before the termination of his contributing membership".

(4) For the purposes of this Article, section 3 of the Status of Children Act, 1987 (No. 26 of 1987), shall apply and have effect as if it were part of the Defence Forces (Pensions) Act, 1932 .".

(2) Where a pension under Article 18 of the Original Scheme--

( a ) may be granted by reason only of sub-article (1) of this Article, or

( b ) is granted on foot of an application made on or after the 1st day of January, 1987,

notwithstanding anything in that Article, the pension shall not be payable by reference to a date earlier than the 1st day of September, 1984.

Article 12

SCHEDULE.

Rules for calculating the contribution to be deducted from the gratuity payable to or in respect of a member of this Scheme at the time of his discharge or death in service.

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 periodic contributions were made under Article 12 (1) of this Scheme and the balance (reduced by one for every additional periodic contribution made by the member under Article 12 (5) of this Scheme) 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 or of the Original 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 in service, 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 periodic contributions were made under Article 12 (1) of this Scheme and the balance (reduced by one for every additional periodic contribution made by the member under Article 12 (5) of this Scheme) 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 improved pension arrangements 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.