Social Welfare Appeal G0113

Title of Payment: Disability Allowance

Date of Final Decision: 29 May 2020

Keywords: Disability Allowance; EU Citizenship Directive; Right to Reside; Dependant; Family Member; Habitual Residence Condition

Organisation who represented the Claimant: KOD Lyons

Casebase No. G0113

 

Case Summary

 This case concerned judicial review proceedings brought following a decision of a Chief Appeals Officer refusing an application for disability allowance – Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R.

The applicant was a Romanian national, Ms. Voican, who had been living in Ireland since 2017.  Ms. Voican lived with her daughter, a dual Irish and Romanian citizen.  Ms. Voican had the right to live in Ireland under the EU Citizenship Directive (the “Directive”) as she was a dependant relative of an EU worker (her daughter).  Ms. Voican applied for disability allowance and her application was refused on the basis that her right to reside in the State was predicated on her continued dependence upon her daughter.  This decision was subsequently upheld on appeal and Ms. Voican brought judicial review proceedings before the High Court.

The State argued that Ms. Voican had established her right to reside in Ireland on the basis of her dependence on her daughter.  Further, the State argued that this dependence needed to be continuing in order for this right of residence to continue.  The State sought to make the case that if Ms. Voican received disability allowance, she would no longer be dependent upon her daughter and as a result she would no longer fulfil the requirements of the Directive.  The State noted that the domestic legislation provided that the right of residence afforded to EU citizens under the Directive was conditional on the relevant person not becoming an “unreasonable burden on the social assistance system of the State” and contended that Ms. Voican being granted disability allowance would represent such a burden.

Ms. Voican argued that the European Communities (Free Movement of Persons) Regulations 2015[1] (the “Domestic Regulations”), which transposed the Directive into Irish law, were inconsistent with the Directive on the basis that it did not impose a condition that a family member of a migrant worker be self-sufficient.  As such, Ms. Voican argued that the domestic regulations were an unlawful transposition of the Directive.  Ms. Voican also argued that the refusal of her claim for disability allowance was inconsistent with the equal treatment imperatives under the Irish Constitution and the European Convention on Human Rights as the decision to refuse her claim for disability allowance discriminates against her on the basis of her nationality.

The Court rejected the State’s arguments and quashed the decision of the Chief Appeals Officer to refuse Ms. Voican’s claim for disability allowance.

The Court ordered the Chief Appeals Officer to reconsider Ms. Voican’s claim which was to be carried out within 6 weeks of the perfection of the High Court Order.  The Court made its decision based solely on interpretation of the Directive and did not need to consider Ms. Voican’s additional argument in relation to the principles of equal treatment contained in the Irish Constitution and the European Convention on Human Rights.  The Court’s reasoning largely turned on the definition of “family member” under Article 2(2)(d) of the Directive and whether this article required that “ongoing and continuing dependency”.

Key Conclusions

There is no self-sufficiency requirement under the Directive in respect of a dependent family member of a migrant worker who is lawfully resident in the State for a period of more than three months to reside in an EU Member State.  Under the Directive the person claiming social assistance has an entitlement to equal treatment in their own right.

[1] S.I. 548 of 2015

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.

Social Welfare Appeal G0111

Title of Payment: Disability Allowance

Date of Final Decision: 2020

Keywords: Disability Allowance; Means Test; Non-Cash Benefit; Mortgage Repayments; Legislative Interpretation; Equal Treatment of Similar Applicants; Precedent Decisions; Judicial Review; Regulation 142; Regulation 143

Organisation who represented the Claimant: Citizen’s Information

Casebase No. G0111

Case Summary:

This case is that of Margaret Bracken v. Minister of Employment Affairs and Social Protection [2018] No.165 J.R (2020 IEHC 394). It was heard with the case of Deirdre Brennan v Minister for Employment Affairs and Social Protection [2018] No.76 J.R. Casebase Report No. G0112 details the latter decision.

This case concerned an application to quash the respondent’s (the Minister for Employment Affairs and Social Protection’s) decision to take into account the applicant’s ex-partner’s mortgage repayments on the house in which the applicant resides when assessing the applicant’s means in the context of her application for disability allowance.

The applicant resides in a house which is in the sole name of her ex-partner, and on which her ex-partner pays a mortgage repayment in the amount of €647 each month. The applicant lives in the house with her son, who is also the child of her ex-partner. She pays no rent and her residency is not the subject of a tenancy agreement.

The applicant was granted disability allowance in August 2017, but in determining her means as part of this application, the respondent took into account the monthly mortgage repayment made by the applicant’s ex-partner. The applicant appealed this decision to the Social Welfare Appeals Office and in doing so relied in part on a previous decision of the Chief Appeals Officer in 2015, in which an applicant in similar circumstances had only 50% of the relevant mortgage repayment taken into account (the “Precedent Decision”). The Social Welfare Appeals Office refused the appeal in November 2017, which decision the applicant then sought to have reviewed by the Chief Appeals Officer. The Chief Appeals Officer subsequently refused to revise the decision of the Social Welfare Appeals Office, by way of a written decision issued on 21 December 2017. The applicant then sought to judicially review this refusal in the High Court.

Before the High Court, the applicant argued that she was not challenging the legislation but instead the respondent’s interpretation of the legislation, which she said was irrational and arbitrary. She argued that the respondent failed to treat similar applicants equally and this is demonstrative of a fixed and inflexible policy. Additionally, no adequate interpretation was provided by the respondent in relation to the difference between ‘housing costs’ and ‘net cash value’. The core issue was 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” contained in Regulation 142 of the 2007 Regulations, and monthly mortgage payments do not come within the meaning of non-cash benefit.

The respondent argued that the statutory provisions allow both cash income and any non-cash benefits which a claimant may reasonably be expected to receive during the year, whether as contributions to the expenses of the household or otherwise to be taken into account. Non-cash benefits include the net cash value to the relevant claimant of his or her annual housing costs actually incurred and paid by a liable relative. Mortgage repayments do come within the meaning of non-cash benefit.

The Court’s decision focused on the question of statutory interpretation and ultimately found that giving the contentious words their ordinary meaning, the respondent had correctly interpreted the legislation and mortgage repayments come within the definition of housing costs and the meaning of non-cash benefits. The Court further found that adequate and understandable reasons had been provided by the Respondent.

The Court therefore refused the applicant’s application to quash the respondent’s decision.

Key conclusions:

Mortgage repayments come within definition of ‘housing costs’ and within the meaning of a non-cash benefit, and will be taken into account when determining a claimant’s means.

High Court Appeal G0102

DN (a minor) and AS v. Chief Appeals Officer and Others [2017] IEHC  52, White J, 13 February 2017

In 2006, Ms S came to Ireland and applied for asylum seeking refugee status. Her application was refused in March 2007. In December of that year her son DN was born. There was litigation around the refugee status refusal until 2010, when she made an application for subsidiary protection under the EC (Eligibility for Protection) Regulations 2006. Ultimately, she was granted subsidiary protection on 1 May 2012.

While waiting for it to be processed, Ms S and her family lived in Direct Provision. She made several applications for child benefit in respect of DN. These applications were refused by the Department of Employment Affairs and Social Protection on the basis that as an applicant for subsidiary protection, she was not habitually resident in Ireland. Eventually she was granted subsidiary protection and awarded child benefit, but the award took effect only from 1 May 2012, the date on which the subsidiary protection declaration was made. The award was appealed but the appeals officer found that the definition of habitual residence in section 246 of the Social Welfare Consolidation Act 2005 expressly excluded applicants for subsidiary protection, and that section 246(8)(c) expressly precluded back-dating benefits for persons granted subsidiary protection beyond the date of the declaration.

Ms S and DN challenged the appeals officer’s decision not to backdate the award on the basis that the exclusions in section 246 post-dated the date of Ms S’ first application for child benefit and that the said exclusions were unconstitutional.

The High Court (White J) found that the constitutionality of the exclusions had already been upheld in earlier cases and that they were not applied retrospectively as her most recent application for child benefit was made after their enactment. The Court held that while Ms S was an applicant for subsidiary protection she was ineligible for child benefit, but found that the delay on the part of the Minister for Justice and Equality in determining her application for subsidiary protection violated her rights and those of D under EU law and the Constitution.