Galvin v Chief Appeals Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello.
• Judgment Date: 27 June 1997
• Neutral Citation: [1997] IEHC 218
• Court: High Court
• Docket Number: [1996 No. 161 J.R.]
• Date: 27 June 1997

GALVIN v. CHIEF APPEALS OFFICER & MIN FOR SOCIAL WELFARE

Judicial Review

BETWEEN

FRANCIS GERARD GALVIN

APPLICANT

AND

THE CHIEF APPEALS OFFICER AND THE MINISTER FOR SOCIAL WELFARE

RESPONDENT

[1997] IEHC 218

No. 161/1996

THE HIGH COURT

Synopsis:

Administrative

Oral hearing; estoppel; legitimate expectations; pensions; entitlement to Old Age Contributory Pension; conflict of fact as to whether requisite payments made; whether respondent obliged to hold oral hearing; whether respondent estopped from refusing to grant pension by virtue of letter representing he was entitled; whether legitimate expectation Held: Respondent obliged to hold oral hearing; no estoppel or legitimate expectation as no detriment and applicant not entitled by statute to benefit claimed High Court: Costello P. 27/06/1997

Galvin v. Chief Appeals Officer

[1997] 3 IR 240

Citations:

SOCIAL WELFARE ACT 1981 S300(4)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S83(1)(c)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S84

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S84(1)(a)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S84(1)(c)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S84(6)

SOCIAL WELFARE (CONSOLIDATION PAYMENTS PROVISIONS) REGS 1994 SI 417/1994 ART 38

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S47(2)(a)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S257

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S258

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S263

BOYLE, STATE V GENERAL MEDICAL (PAYMENTS) BOARD 1981 ILRM 14

MISHRA V MIN FOR JUSTICE 1996 1 IR 189

GREENDALE BUILDING CO, IN RE 1977 IR 256

HOUSING ACT 1966

DUBLIN CORPORATION V MCGRATH 1978 ILRM 208

DEVITT V MIN FOR EDUCATION 1989 ILRM 639

NOLAN V MIN FOR ENVIRONMENT 1989 IR 357

1 Mr. Justice Costello. Delivered the 27th day of June, 1997.

INTRODUCTION.

2 This application for an order of certiorari relates to the applicant's claim that he is entitled to a contributory old age pension, a claim denied by the Department of Social Welfare. He was born on the 30 September 1926 and so became 66 on the 30 September 1992. His claim to a pension was turned down by the Deciding Officer and on appeal by an Appeals Officer. He appealed further to the Chief Appeal's Officer who again ruled against him. It is that ruling which is the subject of these proceedings. It is claimed that the Chief Appeal's Officer failed to comply with the principles of natural and constitutional justice and basic fairness of proceedings. There is, however, a second issue in the case. The applicant claims a declaration that the Appeal's Officer and the Minister are estopped from refusing to grant him the pension by virtue of a letter written by the Department on the 13 April 1987 in response to an enquiry made by the applicant as to his entitlement to a pension, a letter which, it is claimed, represented that on his retirement in 1992 he would have sufficient Social Insurance to entitle him to obtain a pension. I will defer for the moment the estoppel issue and the alternative issue that the applicant is entitled to the pension by virtue of the doctrine of legitimate expectation and concentrate on the claim for an order of certiorari.

THE FACTS.

3 (1) As I have said, the applicant was born on the 30 September 1926. In or about the years 1944 - 1945 (when the applicant was aged approximately 18) he started working for the Golden Quay Company Ltd. and he claims paid Social Insurance at that time, his Social Insurance number was 861881 and his earnings were 12 shillings and 6 pence per week. There exists in the Department records that show stamps paid in respect of Social Insurance by the applicant for the years 1944 and 1945. His record number was 0862277G. The records are contained on a sheet which, the Department states, was intended to cover the period 1943 – 1953 and this sheet shows no contributions paid after 1945.

4 (2) The applicant ceased working for the Golden Quay Company Ltd. and worked for a while for his father. He then took up employment with a firm called Burgess Galvin and Co. Ltd. between 1948 and 1961. He states that he paid Social Insurance stamps during this time and that his record number was 861881/PRSI 086777G. An accountant in Burgess Galvin and Co. Ltd. in a letter sent to the Department on the 4 May, 1993 wrote:

"Further to our telephone conversation of this morning, I confirm that I joined this company in November 1958, as an accountant, and that Mr. F. G. Galvin was already an employee at that time, and had been since the company had been incorporated in 1948. I also confirm that, in the period before his resignation from the company for which I had the responsibility for paying his salary, he was fully covered by Social Welfare Insurance, and that the contributions were deducted from him and stamps affixed to his card".

5 (3) The Department has no records of any stamps having been made after 1945 and, in particular, on the sheet intended to cover the period 1943 – 1953 there is no record of any payments made in respect of Social Insurance. The Department claims that had such contributions been made during that period they would have been recorded on this sheet. The Department has searched the index of insurance number in order to cover the possibility that the applicant had a further insurance number but says that there appears to exist to further insurance number for the applicant. As I will outline in a moment, the issue of fact in the case is whether or not employment contributions were paid by or on behalf of the applicant between 1953 and 1961.

6 (4) In 1961 the applicant formed his own company, the Tallaght Block Company Limited, and worked for that company as a self employed person until it ceased trading in 1981. It is agreed that no employment contributions were made during this period.

7 (5) In 1982 the applicant commenced working for a company called the Tallaght Block (Dublin) Limited. In 1987 he enquired from the Department whether or not he would be entitled to an Old Age Contributory Pension or whether he would have to purchase additional stamps to acquire the pension. By letter of the 13 April 1987 the Department stated that its records up to April 1987 showed that from 1974 to 1992 the total number of Social Insurance weeks was 437, the yearly average of contributions was 24 and the "present personal weekly rate" of his pension entitlement was £50.20. It is agreed that an error occurred in this calculation as the applicant had paid no contributions between 1974 and 1981.

8 (6) In the course of his application for a contributory old age pension in 1993 the applicant had discussions with the investigation branch of the Department as well as correspondence with the "correspondence section" of the Department in Sligo. By letter of the 12 August 1993 the correspondence section informed him that he had been refused a pension on the ground that "according to the records" of the Department he started paying social insurance for the first time on the 1 November 1982. This conclusion was, as will appear later, incorrect. The Department stated that he did not qualify for a pension as he should have entered into insurance before attaining the age of 56 (which would have occurred a few weeks previously, on the 30 September). The applicant had contested this objection and pointed to his previous employment both in 1945 and between 1948 and 1961 and his payment of social insurance in these years. The Department apparently at that time had no record of employment contributions in 1945/46 (they discovered the 1945/46 records later) nor in respect of the 1948/61 period (when the applicant was in the employment of Burgess Galvin and Co. Ltd.). The letter of the 12 August 1993 explained that "it had been determined that for this period the applicants earnings exceeded the insurable limit". These conclusions were repeated in a letter of the 12 July 1994 from the correspondence section in Sligo. This "determination" that he had obtained wages in excess of the statutory limit and so was not insurable has also been contested.

9 (7) By letter of the 15 June 1993 the applicant appealed against the decision to refuse him a pension and on the 28 October 1993 his solicitor wrote a further letter by way of appeal to Mr. Carroll of the Social Welfare Appeals office in Dublin. Both applications contained a detailed submission as to why the Department's decision was wrong and why the applicant was entitled to a pension. Over a year later, by letter of the 8 December 1994 the application was informed that the Appeals Officer had decided to disallow the appeal. The reason for the decision was;

"According to the evidence before me, the appellant has a yearly average of eleven weeks of paid or credited social insurance between 1953 and 1992. A minimum of twenty is required".

10 This, it will be noted, was an entirely new ground for refusing the applicant a pension.

11 In relation to this determination the following points are to be noted;

12 (a) The refusal was based on a failure to meet an average yearly contributions from 1953 of at least 20, not on the grounds that the applicant had not entered into insurable employment before his 56th birthday.

13 (b) It is clear, from correspondence referred to in the next paragraph, that the calculation of the yearly average was based on contribution made from 1982 (when the applicant was employed by the Tallaght Block (Dublin) Limited) and the appeal officer impliedly found that there had been no contributions made whilst the applicant was in the employment of Burgess Galvin and Co. Ltd. between 1948 and 1961.

14 (8) After the decision of the 8 December 1994 further correspondence took place between the applicant's solicitor and the Appeals Officer. By letter of the 30 June the Correspondence section wrote enclosing a copy of the applicant's insurance record. This showed employment...