Ayavoro v Health Service Executive (HSE) & Min for Social & Family Affairs
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 06 February 2009 |
| Neutral Citation | [2009] IEHC 66 |
| Court | High Court |
| Docket Number | [No. 605 J.R./2008] |
| Date | 06 February 2009 |
BETWEEN
AND
[2009] IEHC 66
HIGH COURT
SOCIAL WELFARE
Benefit
Supplementary welfare allowance - Jobseeker's allowance - Judicial review - Benefits refused - Habitual residence - Financial eligibility - Documentary evidence - Whether applicant failed to furnish sufficient or adequate information to enable decision to be made - Whether requests for information and documents relevant, necessary, reasonable and appropriate - Whether any breach of applicant's constitutional or convention rights - Whether applicant given ample opportunity to address legitimate concerns raised - Refusal to respond to reasonable requests - Irrationality - Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164 considered; R (Linbuela) v Secretary of State for Home Department [2005] UKHL 66, [2005] 3 WLR 1014 distinguished; Hosford v Murphy [1987] IR 621, Keegan v Stardust Tribunal [1986] IR 642 and O'Keeffe v An Bord Pleanála [1993] IR 39 considered - European Convention on Human Rights, arts 3 and 13 - Relief refused (2008/605 &1193JR - Ó Néill J - 6/2/2009) [2009] IEHC 66
Ayavoro v Health Service Executive
Facts: The applicant sought judicial review of the decision to refuse him Supplemental Welfare Allowance and Job Seekers allowance in two sets of proceedings on the basis that he had failed to furnish sufficient or adequate information. The applicant alleged that the decision was in breach of Article 3 EHCR. The applicant had resided in the UK and then moved to Dublin and subsequently to Dundalk. The applicant was asked for sufficient documentation to prove his claim for the allowances sought, that had been deemed insufficient on each occasion. He was later joined by his wife and children in Ireland. The applicant maintained that the respondents were motivated by dishonesty and racism in their dealings with him and that he had a legitimate expectation to be interviewed and supplied with appropriate forms.
Held by O’ Neill J. that there was no negligence on the part of the officials as to the entitlement to the social welfare allowance. The officials were entitled to be concerned about the ability of the applicant to supply the appropriate documentation. The reliance on Article 3 ECHR was wholly misplaced. The relief sought would be refused in the second set of proceedings also.
Reporter: E.F.
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
TWINSECTRA LTD v YARDLEY & ORS 2002 UKHL 12 174 2002 2 AC 164
R (LINBUELA) v SECRETARY OF STATE FOR HOME DEPT 2005 3 WLR 1014
SOCIAL WELFARE ACT 2005
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
HOSFORD v MURPHY 1987 IR 621 1988 ILRM 300 1987/6/1751
KEEGAN v STARDUST TRIBUNAL 1986 IR 642
O'KEEFE v BORD PLEANALA 1993 1 IR 39
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 ofcertiorari 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 EuropeanConvention 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...
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