Case Report G0149 – Kristina Kozinceva v The Minister for Social Protection [2020] IECA 7 

Title of Payment:  Job Seekers Allowance 

Date of Final Decision: 28 January 2020 

Keywords:  Jobseeker’s Allowance; homeless; no fixed abode; proof of residence; habitually resident in the State; judicial review; moot; damages  

Organisation who represented the Claimant: Eileen McCabe Solicitors 

Casebase No. G0149 

Case Summary:   

The case concerned a Latvian woman who came to the State to work. She was engaging in part time work in a shop in Stillorgan and was receiving Jobseeker’s Allowance. The Applicant became homeless and subsequently lost her Jobseekers Allowance in April 2016. To continue to obtain her Jobseeker’s Allowance, Clondalkin Intreo Centre requested that the Applicant provide proof that she was living in the Clondalkin/ Lucan/ Newcastle area. As the Applicant had no fixed abode, she could not provide this proof. The Applicant challenged this decision and sought to have her Jobseeker’s Allowance payments resumed. On 14^th of September 2016, the Assistant Principal of the Clondalkin Intreo Centre responded to the Applicant’s solicitor and stated that her Jobseeker’s Allowance claim had been closed since April 2016 and that the Applicant would be required to provide evidence that she was currently residing in the Clondalkin/Lucan/Newcastle area, in order to submit a fresh application.  

The Applicant brought an application for judicial review, seeking to quash the decision made by the Respondent to refuse her Jobseeker’s Allowance. The Applicant also sought declarations that the decision to refuse to provide Jobseekers Allowance based on homelessness was ultra vires the Social Welfare Consolidation Act 2005 (the “2005 Act”) and that the Respondent had unlawfully fettered his statutory discretion by failing to decide the Applicant’s application in accordance with the legislation. The Applicant also brought a claim for damages for breach of statutory duty and costs. 

When leave to seek Judicial Review was granted to the Applicant the Chief State Solicitors Office (“CSSO”) wrote to the Applicant’s solicitor seeking evidence of the days of work she had completed. When the Applicant subsequently submitted this information the CSSO transferred a sum to the Applicant in discharge of all back payments of Jobseekers Allowance.  

Relevant Legislation:  

• The Social Welfare Consolidation Act, 2005 (as amended) 

The Decision of the High Court: 

The High Court rejected the Applicant’s arguments, noting that the Applicant was not denied her allowance in April 2016 because of the fact that she was homeless, but that it was because she did not submit the requisite work dockets. The High Court noted that there had been a meeting between the Respondent and the Applicant in August 2016 where the Respondent had requested details of the addresses that the Applicant had lived in since January 2016. This information was provided by the Applicant, but the Respondent had not been satisfied that it provided sufficient details to link the Applicant to the catchment area. The High Court stated that it could not therefore be concluded that the Applicant was refused Jobseeker’s Allowance on the basis of being homeless.  

The Court felt that by virtue of these interactions with the Applicant, the Respondent had acted appropriately in seeking to give what assistance they could. The High Court noted that there was a requirement under Section 141(9) of the 2005 Act that for a person to obtain Jobseeker’s Allowance they must be “habitually resident in the State”. The Court stated that “it is a sad fact that a person can be (…) habitually resident in the State” but still “homeless.” It was noted by the High Court, however, that it is not unreasonable that Jobseeker’s Allowance payments are administered on the basis of the recipient being resident within the particular catchment area of the centre responsible for providing the payment.  

The Applicant appealed this finding to the Court of Appeal 

The Decision of the Court of Appeal: 

The Court of Appeal granted the Applicant’s appeal and found that the Respondent acted ultra vires in requiring the Applicant to provide evidence that she was ‘currently residing’ in a particular Intreo Centre catchment area in applying for Jobseeker’s Allowance while homeless. The Court of Appeal also found that the Respondent had acted unlawfully in failing to have in place any appropriate process for individuals who were homeless to apply for Jobseeker’s Allowance.  

Damages Claim 

The Applicant had made a claim for damages based on the adequacy of the arrears that were paid to her. The Court of Appeal dismissed the Applicant’s claim for these damages as the Court of Appeal held that the onus was on the Applicant to prove loss on the balance of probabilities and the Applicant had not provided sufficient evidence to support this claim. The Applicant had also made a claim for general damages, but the Court of Appeal held that this claim did not have to be examined as for such a claim to be pursued the Applicant would have to argue that there had been misfeasance in public office and the Applicant did not attempt to pursue this claim. 

Mootness 

The Respondent argued in defence that the Applicant’s claim was moot, in circumstances where the CSSO had issued the Applicant with all back payments in respect of the Jobseeker’s Allowance. The Court of Appeal followed the test of whether the Applicant might have any future claim for personal injuries that are a “real possibility, and not one that is remote as to be purely hypothetical.” The Court of Appeal held that the Applicant’s claim was not moot as the Applicant is at a very real risk in the future of finding herself in the situation which she found herself in 2016, given that she has a history of homelessness. The Court of Appeal therefore rejected the argument that this claim was moot as the issue at the heart of this case could potentially affect the Applicant’s future rights. 

Letter of 14^th September 2016  

The Respondent submitted in defence that the letter of the 14^th of September 2016 did not decide that the Applicant is not entitled to Jobseeker’s Allowance or that she was not entitled to Job Seekers Allowance because she was homeless. The Respondent contended that this letter was not a decision in itself to refuse Jobseeker’s Allowance but that it was only a confirmation of the decision in April 2016 to close the Applicant’s Jobseeker’s Allowance application. The Court of Appeal held that in all the circumstances, the letter must be viewed as an effective failure by the Respondent to accept the Applicant’s re-application for Jobseeker’s Allowance or to have in place a process for homeless persons to claim their entitlement to the Jobseeker’s Allowance.   

“Currently Residing” 

The Court of Appeal held that imposing a requirement of proof of current residence in a specific catchment area for a person who was known to be homeless as a precondition to applying for Jobseeker’s Allowance was ultra vires the powers that had been conferred on the Minister in the legislation. The Court noted that it may be reasonable in normal circumstances for administrative purposes to require an applicant to provide a current residential address. It stated however that this does not justify the imposition of a further residential requirement for an applicant who is known to be homeless and who does not have a catchment area in which they are “currently residing”. 

Key Conclusions:   

The Court of Appeal accepted that the Respondent had acted ultra vires the 2005 Act in requiring the Applicant to provide evidence that she was “currently residing” within a particular catchment area to obtain Jobseeker’s Allowance. Notably, the Court went further and recognised that the Respondent had breached the law in not providing a suitable process of application for individuals who were homeless to obtain Jobseeker’s Allowance.  

Date of final Decision: 28 January 2020 

Observations: 

This decision highlights that the Court of Appeal will apply scrutiny to decisions of public bodies that have the effect of discriminating against individuals who are homeless. While on a strict interpretation the letter of the 14^th of September did not refuse the Applicant Jobseeker’s Allowance on the basis of her homelessness, the Court of Appeal accepted that in essence this factor is what caused the subsequent refusal. The Court of Appeal’s discussion on mootness also indicates that back payments of social welfare distributions may not render such claims moot, particularly where the individual concerned faces a risk of the same circumstances recurring in the future.  

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