According to the Income Support Law 5741-1980, residents of the country, both individuals and families, who are unable to provide for themselves, are entitled to income support pensions, determined by family composition. Under the law, in order to receive a couple's pension, couples must demonstrate that both spouses have met certain requirements, including that both are residents of Israel. The Income Support Regulations 5742-1982 introduced an exemption clause, allowing a person who lives with a spouse who is not an Israeli resident to receive an income support pension. At the same time, Regulation 8(c) stipulates that in such cases, 7.5% would be deducted from the set pension paid to couples who are both Israeli residents.
A mother of seven from East Jerusalem has been receiving an income support pension from the National Insurance Institute (NII) for many years. The woman's husband is a West Bank resident and lives with the family in Jerusalem as part of a family unification process. In August 2008, the woman suddenly discovered that she had not received her income support pension for the preceding two months. Around the same time, HaMoked discovered that 7.5% had been deducted from the pension for some time.
In July 2009, HaMoked filed a District Labor Court claim, seeking the NII be instructed to pay the pension that had been withheld for two months, and reimburse the woman for the sums deducted from the pension at the rate of 7.5%. In response, the NII stated that it would make payments for the two months, but insisted on the 7.5% deduction, made pursuant to Regulation 8(c). As the parties were in disagreement on the issue of entitlement to the full pension, the claim was scheduled for a further hearing.
In its final submissions, HaMoked argued that Regulation 8(c) was unreasonable and should be struck down. HaMoked explained that given Amendment 18 to the Income Support Law, which equalized pension rates for individuals and couples, the implementation of Regulation 8(c) causes an injustice, whereby the pension paid to eligible residents who have non-resident spouses is lower than that paid to single parents with the same number of children. This aberration entirely contradicts the original intent of the law, which was to improve the situation of couples with one non-resident spouse by introducing a reduced couple’s pension that is not lower than a single-person pension. HaMoked also argued that the NII acted in bad faith when it took no action to correct the injustice, causing discrimination based on nationality, as most of the families in which one spouse is not a resident belong to Israel's Arab population. HaMoked also noted that the number of such families within the Arab population is on the rise, because under the Citizenship and Entry into Israel Law 5763-2003, Palestinian spouses cannot upgrade their status or become residents due to collective "security" reasons.
On June 10, 2010,
the District Labor Court rejected the claim, accepting the NII’s position that there was no wrongful discrimination, but that this was a case of permissible distinction based on a relevant difference between residents and non-residents.
On October 7, 2010, HaMoked appealed to the National Labor Court, arguing that the District Court’s judgment had failed to address the appellant’s main argument regarding the injustice caused by the implementation of Regulation 8(c), given Amendment No. 18. HaMoked asked the court to strike down the regulation and find that eligible individuals who have a non-resident spouse would receive the full pension, without the 7.5% deduction.
The National District Court accepted the opinion of the Attorney General which stated that the NII’s conduct was not flawed.
It rejected the appeal, stating, inter alia, that there was no cause to intervene in the NII’s lawful conduct. In addition, the court held that families with only one resident spouse do not meet the initial income support criteria and they receive pensions as an exception to the law. However, the justices did call the legislator’s attention to the anomaly created by the fact that single parents with children receive a larger pension than families with only one resident parent.
