Brennan v Minister for Employment Affairs and Social Protection
| Jurisdiction | Ireland |
| Judge | Ms. Justice Creedon |
| Judgment Date | 05 August 2020 |
| Neutral Citation | [2020] IEHC 393 |
| Docket Number | [2018 No. 76 J.R.] |
| Court | High Court |
| Date | 05 August 2020 |
[2020] IEHC 393
Creedon J.
[2018 No. 76 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – One parent family payment – Mortgage payments – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether insufficient reasons were given
Facts: The applicant, Ms Brennan, 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 7th November, 2017 wherein the respondent used the full value of the monthly mortgage repayments made by the applicant’s ex-partner in assessing her means for the purposes of determining the amount of her One Parent Family Payment. In her written submissions, the applicant referred to the Social Welfare Consolidation Act 2005 and the Social Welfare (Consolidated Claims Payments and Control) Regulations 2007 and argued that the core issue in the proceedings 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” (Regulation 142 of the 2007 Regulations).
Held by Creedon J that the respondent had correctly interpreted the legislation. The Court was satisfied that the respondent adequately set out the rationale for its decision namely, that the legislation provided that the full amount of the mortgage repayments being made by the liable relative in this case had to be taken into account in the assessment of the applicant’s means; additionally, that the “precedent decision” was not in accordance with the provisions of the legislation and accordingly the Social Welfare Appeals Office’s Chief Appeals Officer’s decision was not being revised. Accordingly, 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 engage with a fixed and inflexible policy or base its interpretation on administrative convenience. The Court further found that the reasons given were adequate, factually sustainable, and allowed the Court to exercise its supervisory jurisdiction.
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 7th of November 2017.
Relief refused.
In this application for judicial review the applicant seeks an Order of Certiorari quashing the decision of the respondent made on the 7th November, 2017 wherein the respondent used the full value of the monthly mortgage repayments made by the applicant's ex-partner in assessing her means for the purposes of determining the amount of her One Parent Family Payment. This case was heard together with the case of Margaret Bracken v. Minister for Employment Affairs and Social Protection [2018] 165 J.R. This Court will issue a separate judgment in respect of that case.
The applicant is a home make rand has two young children with her ex-partner from whom she is separated. She is in receipt of a One Parent Family Payment amounting to £190 a week from the respondent. She is a nurse by training but is not currently in employment.
The applicant resides with her two young children in a home jointly purchased by herself and her ex-partner. The applicant's ex-partner pays €1,161.36 per month by way of annuity mortgage repayment in respect of a mortgage taken out on that property jointly purchased by them. The applicant makes no contribution to the mortgage.
The applicant applied for One Parent Family Payment and by decision dated 2nd of February 2015, it was determined that the full monthly mortgage repayment of €1,161.36 should be taken into account in assessing the means of the applicant. On review, this decision was upheld.
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 repayment 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.”
The applicant's appeal to the Social Welfare Appeals Office was decided by decision dated 26th July, 2017 and the reason was set out as follows;
“I have noted the case put forward by Citizens Information as a precedent for this case. However, while it is important that as far as possible there is consistency in the decisions made by the Appeals Office each case must be treated on its own merits. In this case the legislation outlined above provides for the assessment of housing costs paid by the liable relative. I have sympathy with the arguments put forward by the appellant and Citizens Information. 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. Having reviewed that assessment, I am satisfied it has been done correctly and in accordance with the legislation as it stands. Accordingly, I very much regret that this appeal cannot succeed.”
On foot of that decision the applicant appealed further to the Chief Appeals Officer who gave her decision on the 7th of November 2017. It is this decision which the instant judicial review proceedings seeks to impugn. In giving her decision on 7th November 2017the Chief Appeals Officer stated that;
“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.”
She then declined to revise the decision of the Appeals Officer.
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 “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”.
The rules governing the assessment of maintenance and non-cash benefits for the purpose of deciding an applicant's rate of One Parent Family Payment are set out in Rule 1 Schedule 3 Part 5 of the 2005 Act as follows;
“(2) all income in cash (including, in the case of widow's (non-contributory) pension, widower's (non-contributory) pension, surviving civil partners (non-contributory) pension, guardian's payment (non-contributory) and one-parent family payment, the net cash value of such non-cash benefits as may be prescribed), and the income received by a qualified child or qualified children
(ii) in the case of blind pension, widows (non-contributory) pension, widower's (non-contributory) pension, surviving civil partners (non-contributory) pension, or one-parent family payment, any moneys received by way of a maintenance payment (including maintenance payments made to or in respect of a qualified child) insofar as they 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 any amount of maintenance payment in excess of the amount disregarded in respect of housing costs actually incurred (if any).”
Regulation no. 142, of Chapter 6 of the 2007 Regulations provides that 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 principle 2005 Act shall be:
“(a) the net cash value to the person of his or her annual housing costs actually incurred and paid by liable relative insofar as the cash value exceeds €4,952 per annum”.
In respect of maintenance arrangements, Regulation 143 (1) states that
“subject to sub article (2) the maximum amount prescribed for the purposes of Rules 1 (2) (b) (ii) of Part 2, Rule 1 (2) (b) (i) of Part 3 and Rule 1 (2) (b) (ii) of Part 5 of Schedule 3 to the principle Act shall be €4,952.”
In her Statement of Grounds, the applicant asserted inter alia as follows;
The respondent had used the full value of the monthly mortgage repayments made by her ex-partner. She maintained that as the house is in joint names, her partner derives significant benefit from those payments and therefore, at most, only half the repayments should have been taken into...
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