Social Welfare Appeal G0112

Title of Payment: One Parent Family Payment

Date of Final Decision: 5 August 2020

Keywords: One Parent Family Payment; Means Test; Mortgage Repayments; Adequacy of Reasons; Arbitrariness; Equal Treatment of Similar Applicants; Precedent Decisions; Legislative Interpretation; Judicial Review; Regulation 142; Regulation 143.

Organisation who represented the Claimant: Citizens Information

Casebase No. G0112

 Case Summary:

This case is that of Deirdre Brennan v Minister for Employment Affairs and Social Protection [2018] No.76 J.R. It was heard with the case of Margaret Bracken v. Minister of Employment Affairs and Social Protection [2018] No.165 J.R (2020 IEHC 394). Casebase Report No. G0111 details the latter decision.

The case concerns a challenge to the decision by the Minister for Employment Affairs and Social Protection (the “Respondent”), when assessing the means of Ms Brennan (the “Applicant”) for the purposes of determining the amount of her One Parent Family Payment, to use the full value of monthly mortgage repayments made by her ex-partner.

The applicant was a nurse, working as a homemaker, who lived with her two young children in the home she had jointly bought with her ex-partner.  Her ex-partner met the mortgage payments (€1161.36 / month).

The Applicant applied for a One Parent Family Payment.  On 2 February 2015 the Deciding Officer determined that the full mortgage repayments being made by the Applicant’s ex-husband should be taken into account in assessing the means of the applicant.  On review, this decision was upheld.  (This meant that the applicant was entitled to receive a One Parent Family Payment of €190 / week.)

The Applicant appealed the Deciding Officer’s Decision to the Social Welfare Appeals Office.  In her appeal, she relied on a previous decision of the Chief Appeals Officer dated 31 July 2015 (the “Precedent Decision”).  The Precedent Decision concerned a similar applicant in whose case only 50% of the mortgage repayment was taken into account when assessing her means.  The Precedent Decision included the statement that “given the joint ownership of the property and liability of both parties to discharge the debts/bills on the property it is reasonable that half the mortgage and associated payments should be disregarded.”  The Applicant maintained that, as her house was in joint names, her ex-partner derived a benefit from the mortgage payments, and so only half of the payments should be used in the assessment.

On 26 July 2017 the Social Welfare Appeals Officer dismissed the applicant’s appeal.  Notwithstanding the Precedent Decision, the Social Welfare Appeals Officer considered that: “In this case the legislation … provides for the assessment of housing costs paid by the liable relative.  I have sympathy with the arguments put forward …  However, in my view the legislation does not allow the payments being made to be qualified in such a way as to discount from the means assessment the benefit which the ex-partner derives from those payments.  In the circumstances the full value of the mortgage payments being made must be used in assessing the appellant’s means.”

The Applicant appealed the dismissal of her appeal to the Chief Appeals Officer.  On 7 November 2017 the Chief Appeal Officer dismissed this appeal.  The Chief Appeals Officer stated: “While previous decisions do not create precedents the appeals office endeavours to be consistent in its decision making. Having reviewed the decision that I am now referred to I am of the view that while I gave the benefit of a more favourable calculation in that particular case there was in fact no precise rule which allowed for that more favourable treatment.  While that decision was made by me in good faith I do not consider that in the absence of a specific rule in the governing legislation permitting the application of a more favourable calculation it would be appropriate for me to apply the same consideration in Ms. Brennan’s case”. 

The applicant applied to the High Court for judicial review of the Chief Appeal Officer’s decision.  The issue for the High Court was “one of statutory construction and the proper interpretation of the phrase “the net cash value to the (applicant) of her annual housing costs actually incurred and paid by a liable relative insofar as the cash value exceeds €4,952 per annum” and whether the decision of the respondent taken on review was taken within the proper meaning of Regulation 142 of the 2007 Regulations”.

The High Court dismissed the judicial appeal, finding that the Respondent had correctly interpreted the statute.

Key conclusions:

When assessing an applicant’s means for the purpose of calculating a One Parent Family Payment, the Department for Employment Affairs and Social Protection is entitled to take into account mortgage repayments made by a liable relative.  Legislation provides for a portion of the mortgage repayments to be disregarded (at the relevant time, €4952) and the the remainder halved.  However, the legislation does not provide, as the applicant contended, that only half the mortgage repayments should be used in the assessment of means on the basis that the liable relative making the repayments is a joint owner and therefore deriving a benefit from making the repayments.