O'Connell v Ireland
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barron |
| Judgment Date | 01 January 1996 |
| Neutral Citation | 1995 WJSC-HC 5190 |
| Court | High Court |
| Docket Number | No. 13582p/1991,[1991 No. 13582P] |
| Date | 01 January 1996 |
1995 WJSC-HC 5190
THE HIGH COURT
BETWEEN
AND
Citations:
DISABLED PERSONS (MAINTENANCE) ALLOWANCE REGS 1991 SI 200/1991 REG 6
HEALTH ACT 1970 S69
SOCIAL WELFARE ACT 1991 S46
CONSTITUTION ART 41.1.1
CONSTITUTION ART 41.1.2
CONSTITUTION ART 41.2.1
CONSTITUTION ART 41.3.1
SOCIAL WELFARE ACT 1992 S17
DISABLED PERSONS (MAINTENANCE) ALLOWANCE REGS 1992 SI 212/1992 ART 8(4)
EEC DIR 1979 ART 4
CONSTITUTION ART 15.2
CONSTITUTION ART 40.1
CONSTITUTION ART 40.3.1
CONSTITUTION ART 40.3.2
HEALY V EASTERN HEALTH BOARD 1988 IR 747
HYLAND V MIN FOR SOCIAL WELFARE & AG 1989 IR 654
DISABLED PERSONS (MAINTENANCE) ALLOWANCE REGS 1992 SI 212/1992 ART 8
DISABLED PERSONS (MAINTENANCE) ALLOWANCE REGS 1991 SI 200/1991 ART 7
COOKE V WALSHE 1984 IR 710
HEALTH SERVICES REGS 1971 SI 105/1971 REG 6(3)
HEALTH ACT 1970 S52
HEALTH ACT 1970 S56(2)
HEALTH ACT 1970 S72
SOCIAL WELFARE ACT 1991 S46(3)
HEALTH ACT 1970 S72(1)
HEALTH ACT 1970 S72(2)
Synopsis:
MINISTER OF STATE
Powers
Exercise - Limitations - Statute - Provisions - Compliance - Disabled married persons - Maintenance allowance - Amount of allowance reduced by statutory instrument - Instrument made by Minister for Health in reliance on statutory powers - Instrument made ~ultra vires~ Minister - (1991/13582 P - Barron J. - 31/7/95) - [1996] 1 ILRM 187
|O'Connell v. Ireland|
SOCIAL SERVICES
Welfare
Benefits - Reduction - Minister - Powers - Exercise - Validity - Disabled married persons - Maintenance allowance - Statutory instrument made ~ultra vires~ Minister of State - Disabled Per sons (Maintenance) Allowance Regulations, 1991 (S.I. 200), article 6 - Health Act, 1970. ss. 69, 72 - (1991/13582 P - Barron J. - 31/7/95) - [1996] 1 ILRM 187
|O'Connell v. Ireland|
STATUTE
Instrument
Validity - Challenge - Grounds - Minister - Powers - Absence - Disabled married persons - Maintenance allowance - Amount of allowance reduced by statutory instrument - Instrument made by Minister for Health in reliance on statutory powers - Instrument made ~ultra vires~ Minister - (1991/13582 P - Barron J. - 31/7/95) - [1996] 1 ILRM 187
|O'Connell v. Ireland|
Judgment of Mr. Justice Barron delivered the 31st day of July, 1995.
The Plaintiff is a married man living with his wife at 40 Hillview Estate, Tramore Road, Cork. He has been in receipt of a disabled person's maintenance allowance since the beginning of 1986 and his wife has been in receipt of the same allowance since the end of 1986. On the 2nd September, 1991 the Plaintiff received a letter from the Southern Health Board which was as follows:-
"Re Disabled Persons (Maintenance) Allowance Regulations"
Dear Mr. O'Connell,
The Minister for Health has made regulations ( S.I. No. 200 of 1991) effective from 27th July, 1991 relating to eligibility for payment of the above mentioned allowance. Paragraph 6 of these regulations state -
"in the case of spouses both of whom are entitled to be paid a maintenance allowance, the total amount payable to them shall not exceed the amount which would be payable if only one of them were entitled to be paid a maintenance allowance and the other were an adult dependant, and each of them shall be entitled to be paid one half of the total amount."
Noted that yourself and spouse are each in receipt of the maximum personal rate of £55.00 per week and it is proposed to let the existing position remain during the currency of the allowance book which you hold i.e. up to and including paying order dated the 18th September, 1991.
You will appreciate that the current regulations require to be implemented and arrangements are in hand to provide you with your entitlements from the 25th September, 1991 and subsequently. These entitlements in accordance with the regulations are that the amount payable in respect of yourself and spouse is £55.00 and £33.00 equals £88.00 per week with the appropriate payment to each of you being £44.00 per week.
Should you have any queries in this matter you should contact this office.
Yours sincerely,
Senior Executive Officer."
Upon receipt of this letter the Plaintiff sought liberty to obtain Judicial Review of that decision. By Order dated 11th September, 1991 Lavan J. gave the Plaintiff liberty to seek Judicial Review of such decision by way of Plenary Summons.
This Plenary Summons was issued on the 23rd September, 1991, the relief sought is as follows:-
"The Plaintiff's claim is"
The measures contained in Statutory Instrument 200 of 1991 and Section 69 of the Health Act, 1970as amended by Section 46 of the Social Welfare Act, 1991and the said Section 46 of the Social Welfare Act 1991are:
1. Invalid having regard to the provisions of the Constitution in that they represent a serious abrogation of the rights guaranteed to married couples under Articles 41-1-1. 41-1-2. 41-2-1. and 41-3-1 therein.
2. They seek to extend to co-habiting couples the status of married couples.
2 3.They fail to take cognizance of the principles of natural and social justice.
4. They are an attack on the institution of marriage and create a disincentive to marry.
5. I had reasonable and legitimate expectations in that the State had made a commitment and I had reason to believe that the commitment would be honoured. I was not given an opportunity to urge reasons or offer argument against the change in this commitment."
This endorsement as well as the Statement of Claim, was subsequently amended by the inclusion of the following:-
"And I further say that Section 17 of the Social Welfare Act of 1992and Statutory Instrument 212 of 1992 and in particular Article 8(4) therein are invalid and unconstitutional for the reasons already set out. I also contend the decision is ultra vires of the relevant legislation and is also in violation of the E.E.C. Directive of 1978 and in particular Article 4 thereof."
At the commencement of the hearing the Plaintiff was given liberty to add reference to Articles 15.2; 40.1.; 40.3.1.; and 40.3.2 to paragraph 1.
The basis of these claims lies in the decisions in Healy v. Eastern Health Board, 1988 I.R. 747 and Hyland v. The Minister for Social Welfare and The Attorney General, 1989 Irish Reports 654. In both these cases provisions of the Social Welfare Code were challenged on the basis that married couples living together were treated less well than unmarried couples living together. These cases resulted in change in various statutory provisions of the Social Welfare Code and also of the Health Act, 1970so as to ensure that married couples living together and unmarried couples living together should be treated equally. Whereas unmarried couples living together had been treated as individuals and therefore had been entitled each to his or her own allowance, married couples had been treated upon the basis that a dependant spouse was not entitled to a full allowance. The alteration in the statutory provisions equated the positions by reducing in effect the amounts payable to those which had been payable to married couples living together. This was done in the main by defining in the Acts the word "spouse" so as to include both partners living together whether married or not. Section 46 of the Social Welfare Act, 1991amended Section 69 of the Health Act, 1970as follows:
"(3) In this section "spouse" means -
(a) each person of a married couple who are living together or
(b) a man and woman who are not married to each other but are co-habiting as man and wife."
It can be seen from this short reference to the genesis of Regulation 6 of the Disabled Persons (Maintenance) Allowances Regulations 1991 that the Plaintiff and his wife would as a result be each getting only 80% of the full allowance.
It appears...
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