Fagan v Seetec Employment and Skills Ireland

 
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[2018] IEHC 27

THE HIGH COURT

Faherty J.

[2017 No. 332 J.R.]

BETWEEN
DAMIEN FAGAN
APPLICANT
AND
SEETEC EMPLOYMENT AND SKILLS IRELAND

AND

DEPARTMENT OF SOCIAL PROTECTION AND SOCIAL WELFARE APPEALS OFFICE

AND

THE MINISTER FOR SOCIAL PROTECTION
RESPONDENTS

Social Welfare - Jobseekers allowance - Personal Progression Plan - Full-time employment - Executive decision - Mootness

JUDGMENT of Ms. Justice Faherty delivered on the 26th day of January, 2018
1

By order of Noonan J. dated 24th April, 2017, it was directed that the within application for leave be made on notice to the respondents.

2

As clarified by the applicant, in the within application the applicant seeks leave for judicial review to challenge the following decisions:

(1) The decisions of the first respondent and second respondents dated 3rd July 2016 and 13th July, 2016, which, it is alleged, purported to force the applicant into signing a Personal Progression Plan ('PPP') in connection with a JobPath programme administered by the first respondent on behalf of the second respondent;

(2) The decision of the second respondent dated 25th August, 2016, which reduced the applicant's Jobseeker's Allowance by a sum of €44 per week by reason of the applicant's refusal or failure to participate in or avail of an opportunity of participating in suitable education, training or development opportunity or a specified employment programme considered appropriate to his circumstances, in particular his failure to sign a PPP with the JobPath Programme;

(3) The decision of the second respondent dated 15th September, 2016, disqualifying the applicant from receiving Jobseekers Allowance from 14th September, 2016, to 15th November, 2016;

(4) The subsequent decision of the second respondent dated 26th September, 2016, refusing the applicant Supplementary Welfare Allowance;

(5) The decision of the third respondent refusing the applicant the opportunity to record the appeals process which the applicant had initiated consequent on the decisions made by the second respondent, as referred to above.)

The leave application is grounded on the applicant's affidavit, sworn 20th April, 2017.

3

In their respective replying affidavits, Ms Joan Gordon and Mr. Rory Murphy, Chief Appeals Officer and Appeals Officer, respectively, with the third respondent aver that no specific decisions of the second to fourth respondents had been identified by the applicant. However, the Court is satisfied, having regard to the exhibits to the applicant's grounding affidavit, and to his submissions, that the aforementioned decisions are the decisions in respect of which the applicant seeks leave of the Court to judicially review.

4

The reliefs in respect of which leave is sought are set out in the statement of grounds as follows:

'(i) An order of certiorari for the Respondents to inform the citizen of all the terms and conditions…required before [signing] any contract.

(ii) An order of certiorari for the Respondents to inform the citizen of all the evidence and statements made against [him] before a decision is made and action is taken.

(iii) An order of mandamus to the Respondents to fulfil their statutory and constitutional duties.

(iv) An order of prohibition preventing the Respondents continuing this conduct when fulfilling their statutory and constitutional duties.

(v) An order of damages and to return the property that was unlawfully taken.'

The factual backdrop
5

The applicant is a jobseeker in receipt of Jobseekers Allowance. On 3rd July, 2016, he was referred to the first respondent by the second respondent for the purposes of his participation in a JobPath Programme. In her affidavit sworn 1st June, 2017, Ms. Mouna Prenty, CEO of the first respondent, describes the first respondent as 'a private designated activity company' which was 'awarded a contract to deliver the JobPath employment activation programme on behalf of the Department of Social Protection in 2015.' She describes JobPath as a programme which caters mainly for the long term unemployed to assist them to secure and sustain full time paid employment or self employment.

6

On 4th July, 2016, the applicant was informed by the second respondent of this referral and that he had been allocated a 'personal Employment Advisor' to assist him by way of job search support, access to work experience and further education/training opportunities. He was advised that a meeting was set with the first respondent for 13th July, 2016. He was also advised as follows:

'The purpose of the meeting is to explain how the personal advisory service, which we are calling JobPath, will work, to provide details of the supports available to you and to allow you to ask questions about the service.

You will meet representatives from Seetec Employment and Skills Ireland, a company contracted to deliver JobPath on behalf of the Department of Social Protection. You will be invited to an individual meeting with an Employment Advisor from the company to discuss your employment objectives, to identify any supports needed to achieve your employment goal and to develop a [PPP]. As you know all jobseekers in receipt of a jobseeker payment are required to avail of any opportunity to improve their employment prospects and are expected to take up any offers of support including offers of group and individual meetings and any subsequent offers of training, education and development opportunities. Accordingly any refusal or failure, without good cause, to attend this information session or to subsequently participate in JobPath may result in a jobseeker payment being reduced.'

7

The applicant duly attended the meeting with the first respondent. During the initial engagement on 13th July, 2016, a PPP was completed which the applicant was requested to sign. This PPP included details of the type of work sought by the applicant, his hours of availability and work/salary expectations. It is common case that when asked to sign the PPP the applicant refused. The basis of the applicant's refusal was because the PPP contained a statement that his jobseeker's payment may be reduced or stopped if he refused to cooperate with the first respondent in its efforts to arrange employment, training or education for him.

8

As submitted by the applicant in the course of the within hearing, his fundamental objection to signing the document was because the first respondent had no power to reduce or stop his social welfare payments, and that in any attempt to do so the first respondent would not be bound to the same statutory rules and procedures as bind the second to fourth respondents when deciding such matters. According to the applicant, before participating further in the JobPath Programme, he required clarification from the second respondent. Accordingly, on 14th July, 2016, he attended his local social welfare office in Navan where he advised officials of the second respondent that while he had no problem with the JobPath Programme and willingly participated in same, he was not prepared to sign away his rights to his to the first respondent. These concerns were set out in the applicant's hand written letter to the social welfare office.

9

On 20th July, 2016, the applicant attended at the offices of the first respondent in order to keep an appointment that was made the week before. He again refused to sign the PPP having not yet heard back from the second respondent. The applicant asserts that on foot of what transpired between himself and his advisor on 20th July, 2016, he had cause to lodge a complaint with another member of the first respondent's staff. This was duly advised to the second respondent by the applicant.

10

On 27th July, 2016, following a telephone call from a manager with the first respondent, the applicant again attended a meeting with the first respondent. There is dispute as to what transpired at this meeting. According to the affidavit sworn by Gareth Ward, business manager with the first respondent, he became aware that the applicant was recording the meeting on his mobile device. Mr. Ward avers that when he attempted to stop the applicant recording the meeting the applicant alleged that he was being assaulted by Mr. Ward. Mr. Ward avers that the applicant pushed at him a number of times. In a letter written by the applicant to the Chief Appeals Officer of the third respondent on 14th September, 2016, he alleged that he was assaulted by Mr. Ward. Both the applicant and Mr. Ward duly made complaint to An Garda Siochána.

11

On 27th July, 2016, Ms. Annette Hanway of the second respondent's department requested Mr. Ward to provide her with a non-engagement letter in relation to the applicant. By response dated 28th July, 2016, Mr. Ward confirmed that the applicant had refused to sign the PPP 'as he believed Seetec would be in control of his benefits'. In his affidavit, Mr. Ward avers that he attempted to explain to the applicant that this would not be the case.

12

According to the applicant, he reported what he alleged occurred on 27th...

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