Bracken v Minister for Employment Affairs and Social Protection

• Jurisdiction: Ireland
• Judge: Ms. Justice Creedon
• Judgment Date: 05 August 2020
• Neutral Citation: [2020] IEHC 394
• Docket Number: [2018 No. 165 J.R.]
• Court: High Court
• Date: 05 August 2020

BETWEEN

MARGARET BRACKEN

APPLICANT

AND

MINISTER FOR EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION

RESPONDENT

[2020] IEHC 394

Creedon J.

[2018 No. 165 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Disability allowance – Mortgage payments – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether insufficient reasons were given

Facts: The applicant, Ms Bracken, applied to the High Court seeking an order of certiorari quashing the decision of the respondent, the Minister for Employment Affairs and Social Protection, made on the 21st December, 2017, wherein the respondent used the full value of the mortgage repayments made monthly by the applicant’s ex-partner in assessing her means for the purposes of determining the amount of her Disability Allowance. The Court was asked to quash the decision on the basis of insufficient reasons in respect of the issue set out in the statement of grounds and argued before the Court, namely the correct statutory interpretation of the legislation in how mortgage payments were to be treated in assessing the means of the applicant for the purpose of calculating Disability Allowance.

Held by Creedon J that the respondent had, in an earlier decision of the Chief Appeals Officer of the Social Welfare Appeals Office, adequately set out the reasons for taking into account the full amount of the mortgage repayments and further that this was fully understood and accepted by the applicant when seeking the Social Welfare Consolidation Act 2005 s. 318 review in respect of the application of the statutory disregard; the Chief Appeals Officer in her decision again confirmed her reasons for not revising the decision of the Appeals Officer in respect of the application of the statutory disregard. Accordingly, the Court found that the reasons given were understandable and expressed in such a fashion as would allow the applicant to seek appropriate legal advice for the purposes of considering the possibility of challenging same as incorrect on point of law and allow the Court to exercise its supervisory jurisdiction. Furthermore, the Court found that the respondent had correctly interpreted the statute and did not engage in an arbitrary system of implementation which failed to treat similar applicants equally, or that the respondent in its interpretation engaged with a fixed and inflexible policy or based its interpretation on administrative convenience.

Creedon J held that the Court would refuse the relief sought being an order of certiorari by way of judicial review quashing the decision of the respondent made on the 21st of December 2017.

Relief refused.

JUDGMENT of Ms. Justice Creedon delivered on the 5th day of August, 2020:

1 In this application for judicial review the applicant seeks an Order of Certiorari quashing the decision of the respondent made on the 21st December, 2017 wherein the respondent used the full value of the mortgage repayments made monthly by the applicant's ex-partner in assessing her means for the purposes of determining the amount of her Disability Allowance. This case was heard with the case of Deirdre Brennan v. Minister for Employment Affairs and Social Protection [2018] No.76. J.R., This Court will issue a separate judgment in respect of that matter.

2 The applicant is a carer and has one child with her ex-partner from whom she is separated. She resides in a house with her son, which is in the sole name of her ex-partner. Her ex-partner pays €647 per month by way of an annuity mortgage repayment. There is no tenancy agreement between the applicant and her ex-partner and the applicant pays no rent.

3 By decision of a Deciding Officer dated the 16th of August 2017 the applicant was granted Disability Allowance. The respondent ascribed the full amount of the mortgage repayment being made by her ex-partner to Ms Bracken as a non-cash benefit when assessing her means in respect of her application for Disability Allowance.

4 The applicant brought an appeal to the Social Welfare Appeals Office and as part of that appeal relied on a previous decision of the Chief Appeals Officer, dated the 31st July 2015, hereinafter referred to as “the precedent decision”. In that case, a similar applicant was assessed with only 50% of the mortgage payment being taken into account by the Chief Appeals Officer. In that decision, the Chief Appeals Officer stated that;

“I am of the view 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.”

5 The applicant's appeal to the Social Welfare Appeals Office was decided by letter dated 7th November 2017, and the reason was set out as follows;

“The question in this case refers to means as the appellant fulfils the medical criteria for entitlement to Disability Allowance. The Department disagrees with the case being made on the applicant's behalf in relation to the assessment of means.

With regards to the formula/assessment presented by the CIC in the letter of appeal it is accepted that where the house is jointly owned that this formula would apply. The facts in this case are that the home in question is owned solely by Mr. McGhee. As a consequence, the appellant does not have a liability to bear the cost of the mortgage. In these circumstances the mortgage paid is assessed as maintenance paid as a non-cash benefit and in line with the formula for the assessment of maintenance the means are halved. With regard to the decision in 2015 outlined in the appeals submission I must conclude this was an erroneous decision and cannot be compounded by its imposition in this case. In line with the provisions of Social Welfare legislation the appellant was assessed with means of €80.83 per week derived from the non-cash benefit of the mortgage paid. Having examined the evidence carefully I have concluded that this assessment is correct and that the appellant's means are as assessed by the Department. In the circumstances I regret the appeal cannot succeed.”

6 The applicant sought a review of the decision of the Social Welfare Appeals Office by the Chief Appeals Officer in accordance with section 318 of the Social Welfare Consolidation Act 2005. The Chief Appeals Officer gave her written decision on the 21st December 2017 wherein she declined to revise the decision of the Social Welfare Appeals Office. It is this decision that the applicant seeks to impugn in the instant proceedings.

The legislative provisions

7 The relevant legislation in this matter is the Social Welfare Consolidation Act, 2005, hereinafter termed as “the 2005 Act,” together with S.I. No. 142 of 2007 being the Social Welfare (Consolidated Claims Payments and Control) Regulations, 2007, hereinafter termed as “the 2007 Regulations”. The rules as to calculation of means are set out in Schedule 3 to the 2005 Act. Part 1 of Schedule 3 sets out definitions and defines “housing costs” as follows;

“housing costs” means rent or repayment of a loan entered into solely for the purpose of defraying money employed in the purchase, repair or essential improvement of the residence in which the person is, for the time being, residing”.

8 The rules governing the assessment of maintenance and non-cash benefits for the purpose of deciding an applicant's rate of Disability Allowance are set out in Schedule 3 Part 2 of the 2005 Act. Rule 1 sets out what shall be taken into account in the assessment of means and Rule 1 (2) states as follows:

“(2) all income in cash and any non-cash benefit that may be prescribed which the person or his or her spouse civil partner or cohabitant may reasonably expect to receive during the succeeding year, whether as contributions to the expenses of the household or otherwise but-

(a) Excluding the amounts at reference 1 to 19 in Table 2 to this Schedule and

(b) Excluding-

(i) In the cases that may be prescribed, any moneys received by way of a maintenance grant,

(ii) Any moneys received by way of maintenance payments (including maintenance payments made to or in respect of a qualified child) in so far as those payments do not exceed the annual housing costs actually incurred by the person subject to the maximum amount that may be prescribed, together with one half of the amount of maintenance payment in excess of the amount disregarded in respect of housing costs actually incurred (if any)

9 The Social Welfare (Consolidated Claims, Payments and Control) Regulation 2007 SI 142 of 2007 (Hereinafter “the Regulations”) provides in Regulation 142 for the assessment of means - non-cash benefits and in Regulation 143 for maintenance arrangements. It states as follows:

“142. The non-cash benefits prescribed for the purposes of Rules 1(2) of Part 2, 1(2) of Part 3 and 1(2) of Part 5 of Schedule 3 to the Principal Act shall be -

The net cash value to the person of his or her annual housing costs actually incurred and paid by a liable relative insofar as the cash value exceeds €4.952 per annum.

143. (1) Subject to sub- article (2) the maximum amount prescribed for the purposes of Rule 1(2)(b)(ii) of Part 2 Rule1(2)(b)(i) of Part 3and Rule 1(2)(b)(ii) of Part 5 of schedule 3 to the Principal Act shall be €4,952”.

Applicant's Pleaded Case

10 In her Statement of Grounds, the applicant asserted inter alia as follows;

That the respondent had used the full value of the monthly mortgage repayments made by her ex-partner. The applicant asserted that as her ex-partner is the sole owner of the property, he derives significant benefit from those repayments and therefore the full amount of the mortgage repayments should not have been taken into account when assessing her application for Disability Allowance.

11 The applicant asserted that the monthly mortgage repayments of €647 made by her ex-partner...