H v Eastern Health Board

• Jurisdiction: Ireland
• Judgment Date: 11 March 1988
• Date: 11 March 1988
• Docket Number: [1987 No. 264 JR]
• Court: High Court

High Court

[1987 No. 264 JR]

H. v. Eastern Health Board

J.H. and M.H.

Applicants

and

The Eastern Health Board, The Minister for Health and The Attorney General

Respondents

Cases mentioned in this report:—

Murphy v. Attorney General [1982] I.R. 241.

Hyland v. Minister for Social Welfare (Unreported, High Court, Barrington J., 18th January, 1988).

McDermott v. Minister for Social Welfare [1987] I.L.R.M. 324.

Johnston v. Chief Constable R.U.C. [1985] E.C.R. 1651; [1986] 3 C.M.L.R. 240.

Drake v. Chief Adjudication Officer [1987] Q.B. 166; [1986] 3 W.L.R. 1005; [1986] 3 All E.R. 65; [1986] 3 C.M.L.R. 43.

Teuling-Worms v. Bestwur Van de Bedrijfsvereniging Wor de Chemische Industrie(Unreported, European Court of Justice, 11th June, 1987. O.J.No.C 181/5 of 9th July, 1987).

Statute - Interpretation - Statutory instrument - Ambiguous provision - Choice of more logical interpretation - Choice of interpretation in accordance with provisions of Constitution - Disabled Persons (Maintenance Allowances) Regulations, 1984 (S.I. No. 71) - Health Act, 1970 (No. 1), s. 69 - Social Welfare (No. 2) Act, 1985 (No. 14), s. 3.

Social Welfare - Payments by Health Boards - Disabled person's maintenance allowance - Provision requiring account to be taken of income of spouse - Whether account could be taken of social welfare benefits or allowances received by first applicant's spouse in his own night - Disabled Persons (Maintenance Allowances) Regulations, 1984 (S.I. No. 71), art. 4 - Health Act, 1970 (No. 1), s. 69 - Social Welfare (No. 2) Act, 1985, (No. 14), s. 3.

Constitution - Family - Married persons - Right of married persons to be treated no less favourably than unmarried persons in similar circumstances - Social welfare payments - Disabled person's maintenance allowance - Provision requiring account to be taken of income of spouse - Whether requirement extended to social welfare income of spouse in his own right - Validity of provision - Disabled Persons (Maintenance Allowances) Regulations, 1984 (S.I. No. 71), art. 4 - Health Act, 1970 (No. 1), s. 69 - Social Welfare (No. 2) Act, 1985 (No. 14), s. 3 - Constitution of Ireland, 1937, Article 41, s. 3.

Judicial Review.

By notice of motion dated the 24th August, 1987, the applicants applied to the High Court, pursuant to an order of MacKenzie J. made on the 12th August, 1987, giving them liberty to do so for:—

"(1) An order of certiorari quashing the decision of the first respondent its servants or agents made in or about the 14th July, 1987, refusing the payment of disabled person's maintenance allowance to the first-named applicant.

(2) An order of mandamus directing the first respondent its servants or agents to reconsider the application made by the first-named applicant for disabled person's maintenance allowance in accordance with law.

(3) A declaration that by reason of the provisions of E.C. Council directive No. 79/7/E.E.C. and in particular article 4 thereof, the first-named applicant is entitled to equal treatment to a married man in similar circumstances in regard to the payment to her of disabled person's maintenance allowance by the first-respondent."

as well as for various other declaratory orders and damages.

The facts and arguments have been summarised in the headnote and are set out in the judgment of Keane J., infra. The application was heard by the High Court (Keane J.) on the 1st and 2nd March, 1988.

Section 69 of the Health Act, 1970, and the Disabled Persons (Maintenance Allowances) Regulations, 1984, provide for the payment by health boards of a disabled person's maintenance allowance to persons who are handicapped in undertaking work.

Article 4 of the Regulations of 1984 provides, inter alia, that:—

"In determining the amount of a maintenance allowance . . . a health board shall have regard to the income of that person, the spouse of that person, and of all persons [dependant upon] that person . . . In this regard full account shall be taken of all income arising by way benefit or assistance or any increase thereof in respect of a dependant . . ."

By s. 3 of the Social Welfare (No. 2) Act, 1985, 'adult dependant' does not include a spouse who is in receipt of disabled person's maintenance allowance.

The applicants were a married couple with two dependent children. Prior to November, 1986, the husband had been unemployed for some years and had been in receipt of unemployment assistance in respect of himself, his wife and their two children. During some of that time the wife, who was ill, had been in receipt of a disabled person's maintenance allowance (D.P.M.A.). Neither applicant had any other source of income.

On the 14th November, 1986, on the coming into force of the Social Welfare (No. 2) Act, 1986, implementing the principle of equal treatment for men and women as required by E.C. Council Directive 79/7, the wife ceased to be dependent on her husband. On the 9th June, 1987, the wife was informed by the first respondent that payment of her D.P.M.A. would cease and that she would again be treated as dependent on her husband.

The applicants obtained leave to apply for an order of certiorari by way of judicial review of the first respondent's decision on the grounds that it was ultra vires the legislation, in breach of the wife's constitutional rights and in breach of Council directive 79/7.

On the hearing of the application it was conceded on behalf of the respondents that the husband was entitled to unemployment assistance at the maximum personal rate plus half the allowance in respect of the two children and that the wife was entitled to D.P.M.A. at the maximum personal rate plus half the allowance in respect of the children. However, since the total of these sums exceeded the total sum of D.P.M.A. which might have been payable to the wife in respect of herself, her husband and the children, the first respondent, in reliance on art. 4 of the Regulations of 1984, reduced the amount of D.P.M.A. payable so that the combined income of the applicants should not exceed the maximum amount of D.P.M.A.

It was argued on behalf of the applicants that this calculation, like the earlier decision, was ultra vires the legislation, unconstitutional and contrary to directive 79/7.

Held by Keane J., in finding for the applicants, 1, that it would be illogical in calculating the wife's entitlement to disabled person's maintenance allowance to take account of the husband's income from unemployment assistance, no part of which was attributable to the wife's dependency on him.

2. That since in the case of an unmarried couple living together no account could be taken under art. 4 of the Regulations of 1984 of the income of the man, the construction of...