Ayavoro -v- H. S. E. & Anor, [2009] IEHC 66 (2009)

Docket Number:2008 605 & 1193 JR
Party Name:Ayavoro, H. S. E. & Anor
Judge:O''Neill J.
 
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THE HIGH COURTJUDICIAL REVIEW2008 605 JR2008 1193 JRBETWEENAUGUSTINE TONY AYAVOROAPPLICANT ANDTHE HEALTH SERVICE EXECUTIVE AND THE MINISTER FOR SOCIAL AND FAMILY AFFAIRSRESPONDENTSJUDGMENT of O'Neill J. delivered the 6th day of February, 2009 Before the court are two judicial review applications. In the first, the applicant was given leave on 26th May, 2008, by me, to pursue a variety of reliefs, principally, an order of certiorari quashing the decision of the first named respondent made on 26th March, 2008, refusing the applicant Supplementary Welfare Allowance (SWA) on the grounds that the applicant had failed to furnish sufficient or adequate information to enable a decision to be made in his favour.Against the second respondent, the applicant was given leave to seek an order of certiorari quashing the decision of the second name respondent refusing the applicant a Jobseeker's Allowance (JSA) on a basis similar to the reason for refusal by the first named respondent of the Social Welfare Allowance.In addition, declarations are sought to the effect that the actions of both respondents breached the applicant's rights under Article 3 of the European Convention on Human Rights (ECHR). Also, the applicant claims damages, i.e. general damages and damages to compensate him for legal costs.In the second proceedings in which the applicant got leave of this court (Peart J.) on 24th October, 2008, the applicant was permitted to seek, inter alia, orders of certiorari quashing the decision of the first named respondent made on 21st August, 2008, refusing the applicant a Social Welfare Allowance. The applicant was also given leave to seek an order of certiorari quashing the decision of the second named respondent made on 15th October, 2008, refusing the applicant's appeal against an earlier refusal of the Jobseeker's Allowance.Also, in these proceedings, declarations were sought to the effect that both defendants acted in breach of duty and negligently, that they acted in breach of the applicant's legitimate expectation, that the first named respondent's procedures failed to vindicate the applicant's constitutional right to fair procedures and constitutional justice, and that the actions of both breached the applicant's rights, as protected by Article 3 of the European Convention on Human Rights.The facts which underlie both sets of proceedings are as follows:The applicant arrived in Ireland on 4th January, 2008. Prior to that, he was resident in the United Kingdom. The applicant is an Irish citizen of Nigerian birth, a married man with two children. He is a Law graduate, having obtained an LLB degree from John Moores University, Liverpool, and LLM degree from Dundee University, in September 2008.On 4th January, 2008, the applicant applied for Jobseeker's Allowance at the Social Welfare Local Office (SWLO), Northumberland Street, Dublin 1. He gave his address as 6, Freeman's Lane, Dublin 1. Details of his wife and children were included in the application form. There was no intimation of a marriage breakdown. On 7th January, 2008, the applicant informed the second named respondent that he was moving to Dundalk. On 10th January, 2008, a repeat claim for Jobseeker's Allowance was made to Dundalk SWLO and the applicant gave his address as 52, Claddagh Park, Dundalk. The applicant was invited for interview on 5th February, 2008, and on 8th February, 2008, and did not turn up for either of these interviews. He rang to say that he needed one week's notice of any interview. On 28th February, 2008, the applicant was interviewed. At interview, he gave the same address, i.e. 52, Claddagh Park, Dundalk. Later, this address was visited by Dympna Shaw, a Social Welfare Inspector in Dundalk. The applicant was not there and Ms. Shaw was informed by the main tenant that the applicant was there occasionally and, "his stuff was not there".By letter of 7th March, 2008, Ms. Shaw wrote to the applicant in the following terms: "Dear Mr. Ayavoro,With reference to your claim for Jobseeker's Allowance and my interview with you on 28th February, 2008, I wish to advise you that the information, as requested, has not yet been received, i.e. bank statement from NatWest, credit card statement and full details of the monies you stated you had received from friends. Failure to supply this information within the next seven days may result in non-payment of your claim.An envelope for your reply is enclosed." On 13th March, 2008, the applicant informed the SWLO in Dundalk, of a change of address to 6, Rampart Court, Dundalk. On the same date, i.e. 13th March, 2008, the applicant made an application for supplementary welfare allowance to the health centre in Dundalk. In his application form, the applicant describes himself as a married man with two children. Also on that day, the applicant was interviewed by Catherine McHugh, a Community Welfare Officer, who requested from him the following documents: photographic identity, bank statements, credit card statements, evidence that he lived within the common travel area for the past two years, and the applicant's wife's Social Security number.On 14th March, 2008, the applicant returned to the health centre with bank and credit card statements. Photographic identification was sent later from the Employment Exchange.By letter of 18th March, 2008, the applicant wrote to the second named respondent as follows: "I am writing to respond to your last letter and to draw your attention to the above address as my new address.I hope by now you must have received my NatWest bank statement and Barclay's credit card statement I personally left with your colleague at the unemployment office. As proof of the loan I received from my friend, I refer to the payments of £250 made on 14th January 2008, and 5th February 2008, that was made into my NatWest bank account. My bank statements and credit card statement indicate that I am living on debt, therefore, there is no doubt as to whether I have satisfied the means test.It is clear from your investigations that I have been living in the UK for the last two years: therefore, it is not an issue whether I satisfy the habitual residence requirement. In addition, your investigation must have revealed that from the time I made my application for unemployment assistance in Ireland, I have not received benefit in the UK and neither have I received any income from employment. Bearing in mind the length of time my application for unemployment assistance has taken, I beg you to pass my file to the deciding officer so that a decision can be reached soon." On 20th March, 2008, Catherine McHugh wrote to the applicant in the following terms: "Dear Augustine, Further to your visit to my office today regarding the above, I confirm that I am awaiting documentation confirming that you have lived in the common travel area for the past two years as you have last claimed here in 2002.I must require a bank statement from the Bank of Ireland account at the Parade, Kilkenny, and your wife's Catherine's bank account in Bank of Ireland, Court Place, Carlow.I note from my records that you are in receipt of tax credits from the UK. Please supply documentary evidence of these payments and details of your employment while outside this jurisdiction, as you would appear to be the primary applicant on this claim. Please provide documentation from your landlord at 6, Rampart Court, that you have resided at this address.Upon receipt of this documentation, I will be in a position to progress your application." Ms. McHugh had made enquiries of the Social Security Agency in the United Kingdom which disclosed that the applicant had been in receipt of child tax credits which were paid in the United Kingdom in the applicant's name.On the same day, 20th March, 2008, the applicant had called to the health centre and had discussions with Catherine McHugh. She informed him of the requests in the letter. He responded by saying that her actions were racially motivated, an allegation that was to be repeated by the applicant throughout these proceedings.On 28th March, 2008, the applicant wrote to Ms. Hugh in the following terms: "Dear Catherine McHugh, RE: APPLICATION FOR SUPPLEMENTARY ALLOWANCEPPSN: 9122257W I am writing in response to your letter dated 20th March, 2008.In your letter, you stated that my last claim in Ireland was in 2002, which is false. The last claim I made in Ireland was in 2004. In relation to the proof of my physical presence in the common travel area, I have supplied you with proof of my receipt of benefit for the year 2007, and a letter from my University which indicates my presence in the UK for the year 2006. On a balance of probability, I have discharged the burdens of proof imposed on me as to my habitual residence within the common travel area. In addition, you have made several contacts with the unemployment office, which has clearly revealed that there is no doubt as to whether I have lived in the UK for the last two years, and also you have information as to my receipt of child's tax credits which also reveal my physical presence in the UK for the last two years. Therefore, it is not an issue whether I satisfy the habitual residency requirement.You stated that your record confirms that I am in receipt of child tax credit and you require documentary evidence of this payment. It is very unfair and malicious to ask me to provide you with documentary evidence of my receipt of child tax credit when your source of information has already revealed to you details of my receipt of child tax credit.More also. I would like to advise you that under the Social Welfare Act, any benefit or related payment to children does not apply in a means test. Therefore, even though I am in receipt of child tax credit in the UK, it is has no material effect on my application for supplementary welfare allowance. The tax credit is paid to my wife's bank account and it is for the maintenance of my children and has no...

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