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Case Report G0150 – Drutu v The Minister for Social Protection, Ireland and The Attorney General [2024] IEHC 386

Title of Payment: Child Benefit

Date of Final Decision: 27 June 2024

Keywords: child benefit; right to be paid child benefit directly; EU free movement rights; qualified person; application for judicial review; arrears of child benefit

Organisation who represented the Claimant: N/A

Casebase No. G0150

Case Summary:

This case relates to the Applicant’s claim for judicial review, in which she sought to challenge the Department of Social Protection’s (the “DSP’s”) refusal of her application for arrears of unpaid child benefit. The Applicant also sought a declaration that section 220(1) of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”) should be disapplied as it is contrary to EU law in not permitting the family member of a migrant worker exercising their free movement rights to apply for child benefit.

The Applicant , a 30-year-old woman from Romania, resided in Ireland since childhood with her parents and sibling. Her parents had unsuccessfully applied for child benefit on a number of occasions.

In or around June 2012, the Applicant’s father made an application for arrears of child benefit. This application was refused on the basis that it should have been made by the Applicant’s mother. Thereafter, the Applicant’s solicitor applied on behalf of the Applicant. In a decision dated 1 February 2022, this application was refused on the basis that the Applicant was not a qualified person to apply. The Applicant subsequently brought judicial review proceedings, challenging this decision.

The Law

Section 220 (1) of the 2005 Act provides that a person qualified for child benefit is “a person with whom a qualified child normally resides”. This was further confirmed in the Supreme Court decision of Michael (a minor) & ors v. Minister for Social Protection [2021], in which the Court stated that “[t]he child is not entitled to receive the payment of child benefit”.

The Applicant submitted that this provision should be disapplied or the matter referred to the Court of Justice of the European Union (“CJEU”), as it was contrary to EU law in so far as it restricted her, as a child of migrant workers who have exercised their rights of free movement within the EU, from claiming child benefit in her own right.

The High Court determined that the ultimate question was whether the Applicant has a right in EU law to be paid child benefit directly.

Key Conclusions:

The High Court decided that no such right in EU law existed. It further decided that the granting of family benefits is primary a matter of national law. It found that the Applicant was refused on the basis that she did not meet the criteria as a qualifying person set out in Irish law, and that the restrictions in Irish law as to who was a qualified person for the purposes of child benefit were not in contravention of EU law.

Relevant Legislation:

Social Welfare Consolidation Act 2005

Regulation (EEC) 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (up to 31 April 2010)

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (from 1 May 2010)

Key Arguments:

The Applicant argued:

Article 68a of the Regulations: Regulation 1408/71 and Regulation 883/2004 (the “Regulations”) cover child benefit as a family benefit that is paid by a Member State. The Regulations provide that migrating workers exercising their right to free movement should not lose social security advantages guaranteed to them as this would discourage free movement.

The limitations in Irish law on the persons to whom child benefit is payable contravenes Article 68a of the Regulations which refers to family benefit being provided to “the natural or legal person in fact maintaining the members of family”.

Humer, Case C-255/99: The decision of the CJEU in Humer entitles the child of a migrant worker to directly invoke the entitlement to a family benefit such as Irish child benefit and to apply for the benefit themselves, without the intervention of the migrant worker.

Decision of the High Court

The High Court ultimately refused the application.

The High Court found no reason to disapply s220 of the 2005 Act, in circumstances where the restrictions contained therein do not contravene the Applicant’s EU rights.

It found that it did not have decide on any contradiction between Article 68a and Section 220 of the 2005 as the Applicant had not claimed that the person qualified in Irish law to claim child benefit had failed in their duty to support and maintain her. It further found that the Regulations do not create an EU entitlement to child benefit above or different to the entitlements created by national law; nor do they create an entitlement of the child of a migrant worker to a benefit different to or in addition to those conferred by national law.

In relation to the application of Humer, the Court found that the decision does not confer a right in EU law on the applicant as the child of a migrant worker who has exercised their right of free movement, to apply for Irish child benefit in their own capacity. The Court further noted that case law of the CJEU has consistently found that conditions for granting a family benefit were a matter for national law.

Furthermore, the Court noted that in Humer, the CJEU found that the requirement to qualify for the benefit under national legislation was a precondition to the application of the Regulations. In the circumstances at hand, the Applicant did not qualify for child benefit under national legislation.

The Court found that the Applicant’s application for arrears was refused on the basis that she was not a qualified person pursuant to section 220(1) of the 2005 Act. It had nothing to do with her status as a migrant worker, nor did the decision amount to discrimination on grounds of her parents’ exercise of their right of free movement. It held that the basis of the DSP’s refusal of her application for arrears was created and is permitted by Irish law, and it was not in contravention of her rights under EU law.

Date of final Decision: 27 June 2024

Observations:

This decision highlights the fact that the granting of family benefits is primary of national law.

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Case Report G0151: BM And JM (A Minor Suing By His Mother And Next Friend BM) v Chief Appeals Officer, Social Welfare Appeals Officer, Minister For Social Protection, Ireland and The Attorney General [2024] IESC 51

Title of Payment: Carer’s Allowance

Date of Final Decision: 12 November 2024

Keywords: Carer’s Allowance; means test; reduced rate; classes of carers; constitutional challenge; Article 41.2 and the role of mothers in the home

Organisation who represented the Claimant: N/A

Casebase No. G0151

Case Summary:

This case concerned judicial review proceedings, where BM and JM (the “Applicants”) challenged the payment of Carer’s Allowance to BM at a reduced rate, pursuant to the Social Welfare Consolidation Act 2005 (the “2005 Act”).

BM is the mother and carer of JM and has been a recipient the Carer’s Allowance since 2007. BM began to reside as a couple with JM’s father, which meant that her weekly means are assessed by reference to her own means and JM’s father’s means, so as to reduce the rate of Carer’s Allowance payable to her. The Applicants challenged the payment of Carer’s Allowance to BM at a reduced rate and asserted an entitlement to its payment at the full scheduled rate. BM asserted that having regard to JM’s profound dependence on her, and the corresponding commitment that being his full-time carer demands of her, it was highly unjust that she should receive anything less than the full rate of Carer’s Allowance. In particular, the allowance payable to her has been reduced by reference to her own means and not the means of her partner.

The High Court dismissed the Applicants’ application and Hyland J held that the provisions of section 186(2) of the 2005 Act were permissive and conferred a power on the Minister rather than a duty to make regulations increasing the level of allowance payable.

The High Court granted leave to appeal directly to the Supreme Court in respect of the following two issues:

Whether the Minister for Social Protection (the “Minister”) is under any obligation under section 186(1) and section 186(2) of the 2005 Act to make regulations which would dispense with the means-tested calculation of carer’s payment?

The extent (if any) to which Article 41.2 of the Constitution has any bearing on the proceedings and whether Hyland J was correct to state that Article 41.2 of the Constitution cannot be regarded as dictating the level at which the State must provide a carer’s allowance or otherwise mandating the making of regulations by the Minister under section 186(1) of the 2005 Act.

Key Conclusions:

The entitlement to Carer’s Allowance is subject to reduction (or exclusion) on the basis of a uniformly applicable prescribed means test.

The Minister has a power but is not under any duty to make regulations to provide for two classes of Carer for the purposes of means testing of Carer’s Allowance under Chapter 8 of the 2005 Act.

With respect of Article 41.2 of the Constitution, significant financial support is already being provided to BM and JM. The payment of a reduced rate of Carer’s Allowance to BM does not engage Article 41.2 which does not preclude the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long-term care to a profoundly dependent child in the home. It does not require that a sub-set of carers be treated preferentially or be subject to more favourable rules than other carers.

Relevant Legislation:

The Social Welfare (Consolidation) Act 2005, namely Chapter 8 of the 2005 Act; section 186(1) and section 186 (2)

Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (SI 142/2007)

Article 41.2.2 of the Constitution

Key Arguments:

The Applicant argued:

The Minister acted unlawfully in failing to make regulations under section 186(2) of the 2005 Act, which would (or might) provide for payment of Carer’s Allowance at the scheduled rate to BM and other similarly situated persons.

Section 186(2) clearly contemplates that there might be a category of recipients who ought to receive payment of Carer’s Allowance at the full rate, irrespective of means, and provides the Minister with power to make regulations to that effect. The ‘class of classes of person’ are carers whose caring commitment significantly exceeds 35 hours per week, who face a life-long care commitment and who, as a result, have no prospect of ever being in the position to take up employment.

Payment of a reduced rate of Carer’s Allowance to BM is inconsistent with the State’s obligations under Article 41.2 of the Constitution. Article 41.2 provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”

The Respondents argued that what is now section 186(2)(b) of the 2005 Act was enacted so as to enable the Minister to make regulations addressing any difficulties that may arise in the transition from the previous regime, the Prescribed Relatives Allowance (PRA), which was not means tested.

Decision of the Supreme Court:

Issue 1

The Supreme Court held that the Applicants’ contention that section 186(2) of the 2005 Act requires the Minister to make regulations the effect of which would be to provide for two classes of carer was unpersuasive. On the face of section 186(2), the Minister had been given a broad and largely unbounded power to dispense with and/or modify the application of statutory rules relating to the means test for Carer’s Allowance, for the benefit of an unspecified class or classes of carer. The Court held that the Minister has a power, but is not under any duty, to make regulations providing for the matters in section 186(2).

The Supreme Court acknowledged the remedial nature of the 2005 Act, so as to encourage and support the provision of essential care, in a residential setting, to persons having such a disability as to require full-time care and attention. However, it was held that recognition of the 2005 Act as a remedial statute does not alter the interpretative exercise that the Court must undertake.

It was noted that the use of the word “may” in section 186(2) of the 2005 Act could indicate that the power is truly discretionary rather than mandatory in character. The Court held that the wider statutory context does not provide any support for the Applicants’ contention that section 186(2) should impose a mandatory obligation on the Minister. It was noted that the Oireachtas has in Chapter 8 set out a detailed scheme for the payment of Carer’s Allowance, and that it would not appear to make any sense for the Oireachtas simultaneously to legislate to impose a duty on the Minster to make regulations departing from that carefully delineated statutory scheme by dispensing with or relaxing the application of the rules relating to means. The Court agreed with Hyland J’s conclusion that the reference to “may” in section 186(2) is “truly permissive and confers a power on the Minister rather than imposing a duty”.

Issue 2

It was held that nothing in Article 41.2 of the Constitution precludes the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long term care to a profoundly dependent child in the home, or requires that sub-set of carers be treated preferentially or to be subject to more favourable rules than other carers (as would be the case if the general means testing regime did not apply, or apply in the same way, to them.

Collins J held that it appears that Article 41.2 has generally been understood to apply to the marital family only, which Woulfe J expressed the view in his concurring judgement. It was held that no court has ever held that Article 41.2 of the Constitution extends to a legally enforceable duty to provide financial support to mothers in respect of their work in the home. It was held that BM has not been obliged to work outside the home and instead she has been and is being supported in staying at home to care for JM.

Date of final Decision: 12 November 2024

Observations:

The judgement provides clarity on the entitlement to Carer’s Allowance under the 2005 Act. The rate of Carer’s Allowance payable will continue to be calculated using a uniformly applied means test, as prescribed by statute (and set out 2005 Act and the related regulations). The Minister is not permitted to derogate from the Carer’s Allowance rates prescribed by statute despite the full-time demands that carers may face.

The effect of Article 41.2.2 of the Constitution simply requires that the State through its policies and laws seeks to support the rights of mothers, as a class, not to be obliged to work outside the home. It does not commit the State to the provision of any particular form or level of support or giving individual mothers any legally enforceable right to support from the State.

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Case Report G0147: NL v Minister for Social Protection 2024

Title of Payment: Disability Allowance

Date of Final Decision: 28 June 2024

Keywords: Appeal on a point of law, Disability Allowance; medical evidence; adequacy of reasons; insufficient explanation; inadequately reasoned; error in law; unduly restrictive interpretation; burden of proof; appropriate weight not afforded.

Organisation who represented the Claimant: n/a

Casebase no: G0147

Case Summary:

This case concerned an appeal on a point of law under section 327 of the Social Welfare Consolidation Act 2005 (the “2005 Act”) relating to an Appeal Officers decision to disallow an application to revise an appeal on the applicant’s claim for Disability Allowance (“DA”). The application was refused on the basis that the applicant did not establish that he was substantially restricted in undertaking suitable employment due to the severity of his medical condition.

The appeal was bought on behalf of a young man, who was born in 2005 and has several diagnoses, including Autism Spectrum Disorder, ADHD and type 1 diabetes. His mother’s affidavit reports that these diagnoses affect the applicant’s day-to-day life including his mental health and behaviour, and that he requires continual care and attention.

The Applicant’s mother is his full-time carer and she is in receipt of carer’s allowance. Shortly before the Applicant’s sixteenth birthday, he applied for DA, at which point his mother’s domiciliary care allowance would cease.

An opinion of a Medical Advisor was sought, and the Medical Advisor indicated the applicant was not substantially restricted in undertaking employment for a 12-month period. Shortly thereafter, the Deciding Officer refused the application for DA, on the basis that he did not meet the criteria. The Deciding Officer stated that although the medical evidence showed a level of incapacity, it did not show substantial restriction such that the applicant was restricted from taking up training.

The Applicant’smother appealed the decision to the Chief Appeals Officer, requesting that the matter be revised. This appeal was disallowed, with the Appeals Officer noting that the report in relation to the Applicant’s disability was carried out when he was a child and did not reflect his current suitability for employment.

Solicitors for the Applicant wrote to the Chief Appeals Officer enclosing further evidence in respect of the Applicant’s circumstances, requesting that the matter be revised pursuant to section 317 of the 2005 Act. It was argued that where carer’s allowance is provided, there should be an inference that the criteria for DA are met and a similar inference should be drawn from the fact that the Applicant was enrolled in a special education school. Supporting material was provided, including a GP letter and a letter from the Applicant’s school. The appeal was unsuccessful.

Following this, an application to the High Court under section 327 of the 2005 Act was made.

Relevant Legislation:

The Social Welfare Consolidation Act 2005
Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142/2007).

Key Arguments:

The Applicant’s arguments included:

That the Appeals Officer erred in law by misapplying the relevant statutory test. This was on the basis that some paragraphs of the decision the Appeals Officer used the phrase “seeking employment” rather than the words “undertaking employment”, which is the language used in section 210 of the 2005 Act.
That the Appeals Officer was unduly restrictive in the interpretation or application of the concept of ‘substantial restriction’. The Applicant argued that the Appeals Officer did not identify or make a finding on the nature of the employment which would be suited to the Applicant.
That the Appeals Officer applied the incorrect burden of proof, did not afford appropriate weight to the Applicant’s evidence, or made errors of fact. The Applicant asserted that there was prima facie evidence before the Appeals Officer that the Applicant met the criteria for DA. The Applicant also argued that the Appeals Officer should have concluded that the appellant was entitled to DA because his mother was in receipt of carer’s allowance.
The decision was unreasonable and/or inadequately reasoned and they disregarded the evidence that the Applicant’s mother was in receipt of carer’s allowance in respect of the Applicant, which should have been a significant factor in meeting the criteria for DA.

The Applicant also argued that the test in section 210, if read in conjunction with article 13 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations (the “2007 Regulations”), meant that the Applicant simply had to show that they suffered from a specified disability in order to establish that they should be regarded as being substantially restricted in undertaking suitable employment. This was not an argument that had been made to the Deciding Officer or Appeals Officer and was introduced for the first time during the proceedings.

The Respondents’ main argument was that the onus was on the Applicant to establish their entitlement to a payment and produce relevant evidence. They submitted that having carefully reviewed all of the evidence provided for review, the Applicant did not satisfy the requirements of the legislative test for DA.

Decision of the High Court:

The High Court refused the statutory appeal.

Insufficient explanation:

This argument was not accepted by the High Court, with that the duty to give reasons does not extend to a requirement to explain why he preferred certain submissions over other submissions.

The Court found that the reasons for the decisions were abundantly clear. The Court noted that the educational psychology report relied on by the appellant was “quite historic” and “appeared to have been prepared for a separate purpose”, that being assisting with transition to secondary school.

The Court ultimately found that appeal decision accurately summarised the information submitted, the earlier decisions, and the additional detail that had been provided. On this basis, the decision was “adequately reasoned, and the appellant and his representatives ought to have been in a position to understand in general terms why the decision was made”.

Inadequately reasoned:

The Court did not agree that the decision was inadequately reasoned. The Court noted that the section 317 process requires the Appeals Officer to revise the earlier decision where it appears that the decision was erroneous which involves a consideration of matters at the time when that decision was made. Thus, the task of the Appeals Officer was to decide if the new evidence or new facts led to a finding that the original decision was erroneous.

The Court highlighted that at any stage in this process, it was open to the Applicant and his representatives to have obtained a fresh medical or other professional report to meet the section 210 criteria, and that this was not done. The Court noted that the Appeals Officer was instead invited to infer from the submitted evidence that the criteria was met.

Error in law

The argument that the Appeals Officer erred in law by applying the wrong statutory test was rejected. The Court noted the error and stated that “it is extremely important that care is taken by decision makers to ensure that the language used is accurate”. However, the error amounted to a mere misstatement that does not affect the validity of the decision. The Court considered the decision as a whole and deduced that the Appeals Officer was directing her efforts towards the correct test.

Unduly restrictive interpretation

The Court rejected the argument that the Appeals Officer was unduly restrictive in the application of the concept of “substantial restriction’”. The Applicant had argued that the Appeals Officer had attached inappropriate weight to a GP comment that the Applicant was suitable for working or training for rehabilitative purposes.

Noting that this appeal is concerned with the decision on the application under section 317 of the 2005 Act, the Court pointed out that there are clear parameters to that process and the revision decision did not attach any weight to the GP observation in question.

The Court also found that the Appeals Officer was not obliged “to maintain catalogues of potential employment scenarios for persons of differing ages, experiences and qualifications against which an applicant’s application can be analysed”.

Burden of proof

The Court found that: “to be challenged successfully, the treatment of the evidence by the Appeals Officer must result in findings unsupported by the evidence or where they are findings that no reasonable decision maker could make”. The Court further emphasised that “the decision makers are entitled to some level of deference on their treatment of factual matters within their area of expertise” and was ultimately satisfied that the Appeals Officer’s finding was based on the evidence.

The Court rejected the arguments made in respect of Article 137 on the basis that the Applicant’s proposed interpretation would involve the subordinate legislation amending section 210 of the 2005 Act of 2005, by removing the requirement that the applicant establish that they are substantially restricted in undertaking suitable employment. The Court stated that this would lead to “an absurd or anomalous” result and would be plainly unlawful having regard to Article 15 of the Constitution. The Court interested article 317 as attempting to define or describe a “specified disability”.

Appropriate weight not afforded:

The Court disagreed with the argument that the evidence was not weighted correctly, finding that if the Appeals Officer simply proceeded on the basis that the allowance must be given if there was some evidence that an Applicant was substantially restricted, it would transform their function from one which involves engagement with the evident to “something approaching a rubber-stamping exercise”.

The Court further rejected the argument that the Appeals Officer should have concluded that the Applicant was entitled to DA because his mother was in receipt of carer’s allowance. The Court noted that the 2005 Act makes it very clear that each form of social assistance is separate from the other. The Court noted that it was open to the Oireachtas to adopt a more holistic approach to benefits, and this was not done. He further noted that the test for the carer’s allowance versus the test for DA are different, intended to be used by different applicants involving different criteria, and addressing different needs. On this basis, entitlement to carer’s allowance is not a relevant factor to consider.

The Court rejected the argument that the decision was irrational and unreasonable.

Date of final Decision: 28 June 2024

Observations:

The decision provides a helpful consideration of the eligibility criteria for DA, and highlights the High Court’s willingness to defer to the Appeals Officer on their area of expertise in respect of interpretation of the facts. It also highlights the importance of submitting up to date and directly relevant evidence in support of any application for DA. Furthermore, regard should also be had to the High Court’s clear statement that entitlement to carer’s allowance is not a relevant factor in the context of an application for DA.

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Case Report G0146: M.D. v Minister for Social Protection [2024] IECA 28, Burns J, 6 February 2024

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 6 February 2024

Keywords: Domiciliary Care Allowance; statutory appeal to the High Court on a question of law; duty to give reasons; irrational/unreasonable; global care of the child.

Casebase no: G0146

Case Summary: M.D. v Minister for Social Protection [2024] IECA 28, Burns J, 6 February 2024

The case concerned an appeal against a decision of the High Court in relation to an appeal on a point of law under section 327 of the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”), regarding a decision to refuse the applicant’s application for Domiciliary Care Allowance (“DCA”) in respect of her teenage daughter.

The decision was based on the fact that the statutory conditions governing the grant of DCA had not been met, namely that the child required “care and attention substantially in excess of another child of the same age without that disability.”

The child was born in April 2006 and in 2019 received the following diagnosis’ in light of developmental concerns: Development Co-Ordination Difficulties/Dyspraxia (“DCD”) and Autism Spectrum Disorder (“ASD”).

In February 2020, the application first applied for DCA, and enclosed a medical report from the child’s GP; the occupational therapist report diagnosing DCD; and the ASD Multidisciplinary Assessment report confirming the diagnosis of ASD. A Medical Assessor’s Report was subsequent commissioned by the Department of Social Protection (the “Department”), in which the Medical Assessor opined that the child did not require substantially more care and attention than another child of her age. This application was refused on the basis that the qualifying conditions were not met.

The appellant appealed the decision in May 2020 pursuant to s. 311 of the 2005 Act, as with the additional evidence of a family impact statement setting out the child’s difficulties and a further letter from the child’s GP. On 24 July 2020, the appellant was notified that the refusal of DCA had been upheld by a different Deciding Officer who also determined that the qualifying conditions had not been met.

The matter was thereafter forwarded to the Appeals Officer, who again disallowed the appeal on the basis that he was not satisfied that the child required the “care and attention substantially in excess of another child of the same age without that disability.”

The applicant’s legal representatives subsequently wrote to the SWAO, and requested an oral hearing, which was granted by the SWAO. The Appeals Officer dismissed the appeal, and concluded that no significant new information was presented at the oral hearing and that the care and attention that the child required was not substantially in excess of that required by another child of the same age.

This was further escalated to the Chief Appeals Officer under s 318 of the 2005 Act. Further evidence of the child’s habits and behaviours were submitted. This appeal was unsuccessful on the basis that no specific error of law or fact had been identified, and that all the evidence submitted by the appellant had been evaluated against the statutory test for DCA. Although the child required additional support in some areas, the Chief Appeals Officer found that she was independent in many aspects of daily life such as washing, dressing, feeding and toileting. Therefore, it was not established that the child required “continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age.”

The applicant sought a further review under section 317 of the 2005 Act on the basis that information put before the Chief Appeals Officer was not before the Appeals Officer in reaching its initial decision.

This appeal was disallowed. It is this decision that the applicant appealed to the High Court on a question of law pursuant to s. 327 of the 2005 Act.

Relevant Legislation

The Social Welfare Consolidation Act 2005

The decision of the High Court

The High Court initially addressed the question as to what the High Court’s jurisdiction was in a statutory appeal on a question of law.

It held that an appeal to the High Court on a question of law covered

errors of law as generally understood;
errors such as would give rise to judicial review including illegality; irrationality, defective or absence of reasoning, and procedural errors of some significance;
errors which may arise in the exercise of discretion which are plainly wrong; and
certain errors of fact

It further indicated that this jurisdiction was wider than that of judicial review.

Having established that it had jurisdiction, the High Court determined that it had to consider the following three questions of law:

Did the Appeals Officer fail to provide reasons for his decision which were adequate as a matter of law?
Is the decision of the Appeals unreasonable / irrational as a matter of law?
Did the Appeals Officer apply the incorrect statutory test in making his decision?

The High Court ultimately determined that adequate reasons were given for the decision at issue; that the decision was not unreasonable or irrational as a matter of law; and that the correct statutory test was applied by the Appeals Officer in making his decision.

The applicant appealed each of these findings to the Court of Appeal ,and further asserted that the High Court had erred in finding that evidence of consideration were discernible from the decision making process as a whole. The applicant further asserted that the High Court misdirected itself in relation to the operation of the appeals procedure in that it had regard to the Medical Assessor’s Report which was not before the Appeals Office.

The decision of the Court of Appeal

The Court of Appeal upheld the reasoning of the High Court in relation to jurisdiction. It further dismissed the appeal and upheld the decision of the High Court.

Failure to give reasons

The Court of Appeal agreed with the High Court’s determination that “…the rationale for the impugned decision was pattern from the terms of the decision”. The Court of Appeal found that the appropriate standard for the duty to give reasons was set out in Connelly v An Bord Pleanála [2021] 2 IR 752, which provided as follows in relation to adequacy of reasons:

“First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision.”

The Court of Appeal found that this standard had been met by the Appeals Officer. It held that “…the exercise conducted by the Appeals Officer could in no way be described as “box ticking“” and that “….it was not necessary for the Appeals Officer to give reasons as to why he placed more emphasis on the appellant’s earlier submissions than later submissions, nor was it necessary for him to state what weight he attributed to the various submissions. He was entitled to look at the evidence in the round and reach a decision on the basis thereof”.

Unreasonable/irrational

The Court of Appeal found that it in this particular case, the Appeals Officer had had regard to all of the information put before him, and it was up to him to consider all of the submissions made. It held that the Appeal Officer’s decision was not “…not based on determinations of fact which are unreasonable nor has an incorrect interpretation been placed on documentation resulting in unreasonable inferences or conclusions being drawn.” As such, the applicant had failed to establish that the decision was irrational or unreasonable.

Statutory test

The applicant sough to argue that the High Court had erred in finding that the correct statutory test had been applied.

The statutory test for DCA as set out in Section 186C of the 2005 Act, provides:

The Court of Appeal noted that further guidelines provide that “Eligible children from birth to the age of 16 who are living at home and who have a severe disability requiring continual or continuous care and attention which is substantially in excess of that normally required by a child of the same age may qualify for [the allowance]”

The Court of Appeal found that there are two components for this:

the child requires continual or continuous care; and
the care required is substantially in excess of that normally required by a child of the same age

It found that the test is met if “…the global care of the child is continual or continuous and the level of care required is substantially in excess of a child of the same age.” IT held that this standard had been correctly applied by the High Court.

Medical Assessor

Finally, the Court of Appeal found that the criticism of the High Court with respect to her understanding of the Medical Assessor’s Report “…is not warranted” and dismissed this ground of appeal.

Date of final Decision: 6 February 2024

Observations:

This decision highlights that the jurisdiction of the High Court in relation to an appeal on a point of law is broader than that of judicial review. It further clarifies the duty to give reasons, and emphasises that the global care of the child must be continual and in excess of that of a child of the same age, in order to qualify for DCA.

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Case Report G0145: Lordan v Minister for Social Protection Ireland and the Attorney General (Respondents) and The Irish Human Rights and Equality Commission (Notice Party).

Title of Payment: Disability Allowance

Date of Final Decision: 9 July 2024

Keywords: Disability Allowance; judicial review; constitutional challenge; ineligibility during period of incarceration

Organisation who represented the Claimant: N/A

Casebase no: G0145

Case Summary:

The applicant, who was in receipt of a disability allowance from the Minister for Social Protection (the “Minister”), sought judicial review against the decision of the Minister to suspend disability allowance payments to him during various periods of time when he was lawfully imprisoned. Despite having previously met the criteria for receipt of disability allowance, the Minister was not satisfied that the applicant continued to meet the criteria as out in s. 210(1)(ba) and (bb) of the Social Welfare Consolidation Act 2005 (the “2005 Act”) during his periods of incarceration.

The applicant also sought the following:

a declaration of unconstitutionality in relation to s. 210(1)(ba) and (bb) of the 2005 Act on the basis (1) it involves non-judicial punishment contrary to Articles 34 and 38 of the Constitution, and (2) it treated the applicant unequally contrary to Article 40.1;

a declaration pursuant to s. 5 of the European Convention of Human Rights Act 2003 that s.210(1) treated him contrary to the European Convention of Human Rights (the “Convention”) as the disability allowance must be administered without discrimination on grounds identified in Article 14 of the Convention; and

declaratory relief that he is entitled to reinstatement of his disability allowance following his release from prison.

Disability Allowance

The High Court referred to the eligibility requirements of s. 210(1) of the 2005 Act, which state that a person:

(a) who has attained the age of 16 years but has not attained pensionable age;

(b) who is by reason of a specified disability substantially restricted in undertaking employment of a kind which, if the person was not suffering from that disability would be suited to that person’s age, experience and qualifications, whether or not the person is availing of a service for the training of disabled persons under section 68 of the Heath Act 1970;

(ba) subject to subsection (10), the reason for whose substantial restriction in undertaking suitable employment is as a direct result of the person concerned being incapable of work and for no other reason;

(bb) who, were if not for the substantial restriction would be available to work in insurable employment or insurable self-employment; and

(c) whose weekly means, subject to subsection (2), do not exceed the amount of disability allowance (including any increases of that allowance) which would be payable to the person if that person had no means.

Whilst not challenged by the application, the High Court mentioned s.249 of the 2005 Act which provides for the automatic disqualification of certain persons from certain benefits. In particular, s.249(6)(b) states that a person shall be disqualified for receipt of jobseeker’s allowance, pre-retirement allowance, supplementary welfare allowance, disability allowance or farm assist (including any increase in such allowance or assistance) while he or she is undergoing penal servitude, imprisonment or detention in legal custody.

Burden of Proof

The applicant relied heavily on the decision of the Supreme Court in P.C. v Minister for Social Protection, which concerned the disqualification pursuant to s.249(1) of the 2005 Act of a prisoner from payment of State Pension Contributory (“SPC”), in challenging the denial of disability allowance during his incarceration.

The Court noted that s.201(1) requires an applicant for disability allowance, along with a number of other working age social welfare payments, to establish that they have a disability as a result of which, and for no other reason, they are restricted in undertaking suitable employment in addition to their disability. Once the applicant was imprisoned, he no longer qualified as his disability was not the only reason for his restriction in undertaking suitable employment. The applicant’s incarceration restricted him from undertaking suitable employment, in addition to his disability, thereby rendering him fundamentally ineligible for disability allowance. Therefore, once he was sent to prison he no longer qualified for the allowance as his disability was not the only reason for his restriction in undertaking suitable employment.

The Court further distinguished P.C. on the basis of the legislative history of the provisions relied upon in that case, and the means-tested nature of the disability allowance versus the contributory nature of the SPC in rejecting the applicant’s claim.

Constitutional Equality

To ground an Article 40.1 constitutional right to equal treatment claim, the applicant had to show that they were in a relevant comparable situation to that of their chosen comparator. The applicant centred his equality argument on the differing treatment of (1) a recipient of disability allowance who is no longer eligible for payment pursuant to s.210(1) due to their imprisonment and unavailability for suitable work, as compared to (2) a recipient of disability allowance who is detained for treatment pursuant to various legislative provisions, namely s.249(1A) of the 2005 Act, which allows a person who is “detained for treatment” to retain their disability allowance.

The Court drew a distinction between the two situations, noting that both disabled persons are detained but on different legal bases and are, therefore, in very different positions. The person detained for treatment is eligible for payment of disability allowance as their disability rendered them unable to undertake suitable employment. The fact that they are subsequently detained for treatment does not give rise to any new or additional reason why they are unable to undertake employment. This is a different situation to the recipient of disability allowance who is now unable to undertake suitable employment due to their detention in prison, in addition to being unable to work due to their disability and is, therefore, deemed ineligible for disability allowance.

The Court re-iterated the test for unconstitutional inequality as developed by the Supreme Court in Donnelly v. Minister for Social Protection [2022] IESC 31 and as endorsed by the Supreme Court in O’Meara v. Minister for Social Protection [2024] IESC 1, namely “discrimination that is based on arbitrary, capricious or irrational considerations”, and concluded that the legislative distinction drawn between disabled convicted criminals and disabled persons detained for treatment is not capricious, irrational or perverse and therefore there was no basis for finding s.210(1) to be in breach of Article 40.1 of the Constitution.

Reinstatement of disability allowance upon release

The applicant also sought to challenge the requirement for him to reapply for disability allowance upon his release from prison. The Minister confirmed that a person who had been in receipt of disability allowance and who became ineligible due to being imprisoned, had to reapply for disability allowance upon their release. There is an operational exception for persons who spent less than six months in prison who do not have to reapply.

The Court confirmed the Minister is not required to provide an explanation for allowing a person who serves a prison sentence of less than six months to be removed from what would otherwise be a requirement for them to reapply for disability allowance. The applicant had sought a declaration that equated to asking the court to direct the Oireachtas on the amendment of existing legislation, which the court noted was not appropriate due to the constitutional separation of powers.

In rejecting the applicant’s claim, the Court concluded that the disability allowance was properly and lawfully stopped as soon as the applicant became ineligible in accordance with the statutory provisions. It is not unlawful for the Minister to require a disabled person who lost their disability allowance for which they had previously been found eligible due to being unavailable for work while in prison, to reapply for disability allowance upon their release from prison. Neither is their anything unlawful in the Minister’s administrative arrangement that waives that requirement where a person has spent less than six months in prison.

The European Convention of Human Rights

The applicant further claimed that his treatment interfered with his convention rights including his property rights and, as a disabled person, his right to protection as a member of “other status” pursuant to Article 14.

The applicant relied heavily on the dissenting decision of the European Court of Human Rights (the “ECtHR”) in Belli and Arquier Martinez v. Switzerland (App. No. 65550/13, 11 December 2018) which condemned the disentitlement of a disability payment to a person without a permanent address in Switzerland as unlawful discriminatory treatment according to criteria irrelevant to their disability. The majority decision however held there was no violation of Article 14 and upheld the impugned treatment. A similar decision was reached in P.C. v. Ireland (App. No. 26922/10, 1 September 2022) which was a case taken against the Irish State in the ECtHR in relation to the refusal by the Supreme Court to restore payment of a person’s full pension during a period of incarceration as convicted prisoners were not in a relevant similar position to persons detained for treatment of mental illness.

The court ultimately rejected this claim as the applicant’s case was at variance with the clear jurisprudence of the European Court of Human Rights.

Key Conclusions: The applicant was ultimately unsuccessful in all of his applications, and on all grounds. The Court was clear that there was no ambiguity in the refusal of the applicant’s application. In making her decision, the Court reiterated the fundamental fact that the applicant’s ineligibility was because his incarceration restricted him in undertaking suitable employment in addition to his disability, thereby clearly making him ineligible under Section 210 of the 2005 Act.

Relevant Legislation:

Social Welfare Consolidation Act 2005
Article 14 European Convention of Human Rights

Key Arguments:

The applicant’s fundamental argument was that their disqualification from disability allowance under the 2005 Act while imprisoned was unlawful.

Secondary arguments the applicant made were:

A person who has served six months or more of imprisonment must reapply for disability allowance, whereas a person who as served less than six months of imprisonment before release is automatically put back on disability allowance on their release – the applicant contended this differing treatment was in breach of principles of constitutional equality; and
That his treatment interfered with his convention rights, including his property rights and as a disabled person, his right to protection as a member of “other status” pursuant to Article 14 of the Convention.

The respondent’s response to the applicant’s fundamental argument was that the applicant clearly did not meet the eligibility requirements under s.210 of the 2005 Act, namely that to be eligible the person must (1) have a disability, and (2) they would be able to undertake suitable work were it not for their disability. Due to the applicant’s imprisonment, he was unable to work for a reason other than his disability, and thus clearly did not meet the eligibility criteria. Additionally, under s.249 of the 2005 Act, it clearly states that a person shall be disqualified from disability allowance where they are “undergoing imprisonment or detention in legal custody”.

With respect to the applicant’s secondary arguments:

The respondent noted that the differing treatment of parties who had been imprisoned for less than six months prior to release, to parties who had been imprisoned for longer than six months with respect to the automatic renewal of their disability allowance, was a matter for the Oireachtas, and thus due to the separation of powers would be inappropriate for the court to compel any changes with respect to this differing treatment;
With respect to the applicant’s argument on ECHR grounds, the respondent stated that the applicant’s case is at variance with the clear jurisprudence of the Strasbourg court.

Decision of the High Court:

The High Court ultimately refused the application.

Date of final Decision:

9 July 2024.

Observations:

As noted above, the essence of the decision lay in a clear ineligibility on the part of the applicant to receive disability allowance under s.210 of the 2005 Act. A fundamental plank of the test set out in s.210 of the 2005 Act is that for a person to be eligible for disability allowance they would have to be able to undertake suitable work were it not for their disability. As the applicant was imprisoned it was clear that they would therefore not be eligible under the criteria set out in s.210, and in addition, s.249 of the 2005 Act, also clearly states that a person who is undergoing imprisonment or detention in legal custody is disqualified.

The other arguments made by the applicant are dealt with relatively swiftly by the Court, with dismissals of the potential breach of Constitutional Equality on the grounds of differing treatment and no comparator between the applicant’s case and the decision of the Supreme Court in P.C. (on which grounds the applicant had based his claim). Similarly, claims of differing treatment on reinstatement of disability allowance on release are dismissed with on the grounds of separation of powers, and any potential ECHR case dismissed on the ground of clear variance from jurisprudence of the Strasbourg court. In sum, the Court is clear that the application appears to be relatively groundless.

For more information, contact us at:

Community Law and Mediation Centre, Northside

Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

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T: 01 847 7804

Social Welfare Appeal G0138: The O’Meara Case (Widow’s Contributory Pension)

Title of Payment: Widow’s (Contributory) Pension

Date of Final Decision: 22 January 2024

Keywords: Widow – Widower – Contributory – Pension – Marriage – Family

Organisation who represented the Claimant: FLAC

Casebase no: G0138

Case Summary:

This case relates to an appeal challenging the constitutionality of the refusal of the Widower’s Contributory Pension (“WCP”) to non-marital families.

Mr O’Meara and his life partner, Ms Michelle Batey, began their relationship around 2002. They had their first child in 2007, their second child in 2008 and their third child in 2010. The Court acknowledged that they “lived together in a committed, stable and long-term family unit”. The couple had decided not to get married as Ms Batey had a negative experience of her own parents’ marriage and did not want to replicate this for her children. In 2021, Ms Batey passed away from breast cancer and COVID-19.

Following the death of his partner, Mr O’Meara applied for WCP under the Social Welfare Consolidation Act, 2005 (the “Act”). He was refused WCP on the basis that he did not fall within the definition of “widower”, as he had not been married to his partner. Mr O’Meara and his three children brought a claim to the High Court that section 124 of the Act infringed their right to equality under the European Convention on Human Rights and the Constitution. The High Court dismissed this claim.

On appeal to the Supreme Court (the “Court”), however, the decision to refuse WCP to Mr O’Meara was quashed. The applicants were successful, and the appeal was allowed.

Relevant Legislation:

The Social Welfare Consolidation Act, 2005 is the key piece of legislation in this case.

Section 123 of the Act defines “widower” as “a widower or a man who would otherwise be a widower but for the fact that his marriage has been dissolved, being a dissolution that is recognised as valid in the State”.

Section 124(1) of the Act provides that “subject to this Act, a widow or widower shall be entitled to pension…”.

Therefore, this Act clearly set outs that only those who fall within the definition of “widower” i.e., those who are married, shall be entitled to the WCP.

Key Arguments:

The applicants (John O’Meara, Jack O’Meara (a minor suing by his father and next friend John O’Meara), Thomas O’Meara (a minor suing by his father and next friend John O’Meara), and Aoife O’Meara (A minor suing by her father and next friend John O’Meara)) argued that:

section 124 of the Act is repugnant to the Constitution on the basis that the O’Mearas are a Family for the purpose of Article 41 of the Constitution’.
1. This argument was an equality argument. It was argued that if the O’Mearas are a family under Article 41 of the Constitution, then each family should be treated equally before the law.
1. Both children of married and unmarried parents must rely on their parents emotionally and financially, and they both suffer the same loss when a parent passes away. Therefore, it was submitted that there was ‘stark differential treatment’ of these children by section 124 of the Act.
1. Similarly, both married and unmarried parents suffer emotional and financial loss on the death of their partner. This effects both parents’ ability to provide for their children.
1. These distinctions were found by the Court to be ‘arbitrary and capricious’, failing to hold parents ‘equal before the law’.
1. The applicants also relied on Re McLaughlin, which at paragraph 52 of its judgement stated, ‘a policy in favour of marriage or civil partnership could constitute justification for differential treatment where children were not involved but could not do so in relation to a benefit targeted at the needs and well-being of children’.

‘the statement of Walsh J. for this Court in The State (Nicolau) v. An Bord Uchtála [1966] I.R. 567 (“Nicolau”) that the Article 41 Family was limited to a marital family, was wrong and should be overruled or disavowed.’
- In the judgement of Nicolau, the Court held that ‘Article 41 deals with only one kind of family, namely a family founded on the institution of marriage’.
- The applicants argued that this statement should be disavowed on the basis that the O’Meara’s were a Family under the meaning of Article 41.
- The Court however held that it was not necessary to address this to resolve the case at hand. The Court focused instead on the argument of equality outlined above.

The respondents (The Minister for Social Protection, Ireland and the Attorney General) argued that:

they relied on the reasoning in the judgement of Michael and Emma v. The Minister for Social Protection, The Attorney General and Ireland [2019] IESC 82, [2021] 3 I.R. 528 (“Michael and Emma”) to allow differentiation to be made ‘on the basis of the marital status of the parent recipient of the benefit’.

The case of Michael and Emma dealt with whether asylum seekers could be eligible for the payment of child benefit. In its judgement, the Supreme Court held that it was ‘permissible’ for a distinguishment to be made between ‘children of parents habitually resident in Ireland’ and ‘children of asylum seekers’. Therefore, child benefit would not be payable to asylum seekers.
1. The respondents argued that this same reasoning be applied to the case at hand.
1. The Court rejected the idea of applying the reasoning of Michael and Emma as it found the facts of each case to be too dissimilar.

Decision of the Supreme Court:

The Supreme Court allowed the appeal. The Court held that refusal to extend WCP to Mr O’Meara ‘as a parent of the second, third, and fourth appellants’ was unconstitutional. The Court declared that section 124 of the Act was inconsistent with the Constitution, and subsequently quashed the Minister’s decision to deny Mr O’Meara WCP.

The Court did not however declare section 124 of the Act as unconstitutional due to the ramifications this would have on individuals who currently receive WCP. Instead, the Court stated that this is a matter for the Oireachtas to legislate on.

It should be noted that although the Court did not decide on the correctness of the Nicolau Family statement in this judgement, it was held that this should await to be decided upon in a future case in which it is necessary to do so.

Date of final Decision: 22 January 2024

Observations:

It could be said that the Court have implied that where there is a family with non-married parents, and one parent passes away, the surviving parent should be entitled to WCP.

As stated in paragraph 52 of the judgement, ‘in the ordinary way, therefore, the operation of the system involves the court stating definitively, what the law is…and allowing the Oireachtas…and the people…to consider if they are content with the outcomes that the law as so interpreted produces and if so, to build upon it, and if not, to qualify it or perhaps change it entirely’.

Therefore, it is ultimately now up to the Government to consider amending legislation in light of this judgement.

For more information, contact us at:

Community Law and Mediation Centre, Northside

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T: 01 847 7804