Harvey v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-SC 1637
• Court: Supreme Court
• Docket Number: [1987 No. 23 J.R.]
• Date: 01 January 1990

HARVEY v. MIN SOCIAL WELFARE

BETWEEN

BERNADETTE HARVEY

Applicant/

Appellant

and

THE MINISTER FOR SOCIAL WELFARE AND THE ATTORNEYGENERAL

Respondents

1989 WJSC-SC 1637

Finlay C.J.

Hamilton P.

Walsh J.

Griffin J.

Hederman J.

151/87

THE SUPREME COURT

Synopsis:

CONSTITUTION

Statute

Validity - Minister of State - Powers - Exercise - Ministerial regulations - Power conferred without express restraint - Enactment presumed prima facie to accord with Constitution - Oireachtas assumed to intend power to be exercised in accordance with Constitution - Termination of one of two pensions received by blind widow - Held that the provisions of s. 75, sub-s. 1, of the Act of 1952 were not such as to make it necessary or inevitable that the respondent Minister would make a regulation that infringed the provisions of Article 15.2 of the Constitution by seeking to impose regulations which were not regulatory or administrative - Held that the applicant had not established that the provisions of s. 75, sub-s. 1, of the Act of 1952 were invalid having regard to the provisions of the Constitution - Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1953, art. 38 - Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1979, art. 4 - Widows and Orphans Pensions Act, 1935, s. 22 - Social Welfare Act, 1952, s. 75 - Social Welfare Act, 1979, s. 7 - Social Welfare (Consolidation) Act, 1981, ss. 310–312 - Constitution of Ireland, 1937, Article 15 - (151/87 - Supreme Court - 10/5/89) - [1990] ILRM 185

|Harvey v. Minister for Social Welfare|

SOCIAL SERVICES

Welfare

Benefits - Disqualification - Legality - Minister of State - Regulation - Validity - Purported reversal of enactment of Oireachtas - Regulation made ~ultra vires~ Minister - Blind pension and non-contributory widow's pension - Discontinuance of blind pension - Point initially raised in appellate court - Held that the terms of article 4 of the Regulations of 1979 contradict directly the provisions of s. 7 of the Act of 1979 and were made ~ultra vires~ the respondent Minister and were invalid - Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1953, art. 38 - Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1979, art. 4 - Old Age Pensions Act, 1932, s. 6 - Widows" and Orphans" Pensions Act, 1935, s. 22 - Social Welfare Act, 1952, s. 75 - Social Welfare Act, 1979, s. 7 - Social Welfare (Consolidation) Act, 1981, ss. 175, 310–312 - Constitution of Ireland, 1937, Articles 15, 45 - (151/87- Supreme Court - 10/5/89) - [1990] ILRM 185 - [1990] 2 I.R. 232

|Harvey v. Minister for Social Welfare|

STATUTE

Instrument

Contents - Oireachtas - Intention - Presumption - Minister of State - Enactment conferring power to make regulations - Presumption of intention that power be exercised in accordance with provisions of the Constitution - See "Constitution, statute" and "Social Services, welfare" - (151/87 - Supreme Court - 10/5/89) [1990] ILRM 185 - [1990] 2 I.R. 232

|Harvey v. Minister for Social Welfare|

MINISTER OF STATE

Powers

Exercise - Oireachtas - Intention - Presumption -Ministerial regulations - Presumption that power would beexercised in accordance with Constitution - ~See~"Constitution, statute" and "Social Services,welfare" - (151/87 - Supreme Court - 10/5/89) [1990]ILRM 185 - [1990] 2 I.R. 232

|Harvey v. Minister for Social Welfare|

SUPREME COURT

Appeal

Jurisdiction - Exercise - Issues - Point raised in appellate court only - Determination of point at hearing of appeal - Exception to normal practice - ~See~ Social Services, welfare - (151/87 - Supreme Court - 10/5/89) - [1990] ILRM 185 - 1990 2 IR 232

|Harvey v. Minister for Social Welfare|

Citations:

SOCIAL WELFARE (OVERLAPPING BENEFITS) REGS 1953 SI 14/1953 ART 38

SOCIAL WELFARE (OVERLAPPING BENEFITS) (AMDT) REGS 1979 SI 118/1979 S3

SOCIAL WELFARE (OVERLAPPING BENEFITS) (AMDT) REG 1979 SI 118/1979 S4

SOCIAL WELFARE ACT 1970 S3

SOCIAL WELFARE (OVERLAPPING BENEFITS) (AMDT) REG 1974 SI 224/1974

OLD AGE PENSIONS ACT 1932 S6

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S175

SOCIAL WELFARE ACT 1970 S75

SOCIAL WELFARE ACT 1979 S7

CONSTITUTION ART 15.2

HARVEY V MIN SOCIAL WELFARE 8.4.87 UNREP 1987/3/764

EAST DONEGAL CO-OP V AG 1970 IR 317

SOCIAL WELFARE ACT 1970 S32

SOCIAL WELFARE ACT 1973 S8

SOCIAL WELFARE (NO.2) ACT 1974 S9

1 JUDGMENT delivered on the 10th day of May 1989by FINLAY C.J. [Nem Diss]

2 This is an appeal brought by the Appellant against the Order of the High Court dated the 8th April 1987, made by Blayney J. dismissing her application for judicial review.

3 The facts out of which the application and appeal arise are not in dispute and they are as follows.

4 The Applicant was born on the 2nd June 1919 and accordingly reached the age of sixty-six years, which under the statutes now applicable is "pensionable age"on the 2nd June 1985. The Applicant's husband died on the 19th January 1982 and the Applicant then applied for a widow's non-contributory pension, and a pension was awarded to her, taking into account her means from other sources, on the 5th March of 1982. The Applicant having applied for a pension in respect of blindness and having failed to satisfy the authorities of the extent of her blindness at a prior time applied again in 1982 for such a pension and was awarded a pension of£30.45 per week in respect of her blindness from the 3rd June of1982.

5 She was paid both her widow's non-contributory pension and the pension in respect of her blindness from that time until the 2nd June 1985 when as a result of a ruling made on behalf of the Minister for Social Welfare the pension in respect of her blindness ceased and she was continued to be paid the widow's non-contributory pension only. This decision was made in pursuance of the provisions of Article 38 of the Social Welfare (Overlapping Benefits) Regulations 1953 as inserted byway of addition by the Social Welfare (Overlapping Benefits) (Amendment) Regulations 1979, being Statutory Instrument No. 118 of 1979.

6 The Appellant's case is that this statutory instrument either does not apply to the position of the Appellant or if it does apply to the position of the Appellant is invalid and in either event cannot justify the decision of the Minister. It is agreed on behalf of the Respondents that if the Minister's decision to confine the Appellant to one pension, namely, the widow's non-contributory pension, is valid, it can only be justified by the provisions of Article 38, as inserted by this statutoryinstrument.

7 The relevant provisions of the Regulation of 1979 are those contained at Sections 3 and 4 and are as follows:

"3. In these Regulations:-"

8 "old age (non-contributory) pension" means an old age pension under the Old Age Pensions Acts, 1908 to 1979;

9 "old age (contributory) pension" means an old age (contributory) pension under the Social Welfare(Amendment) Act, 1960(No. 25 of 1960).

10 4. The Social Welfare (Overlapping Benefits) Regulations, 1953 (S.I. No. 14 of 1953) are hereby amended by the addition after article 37 (inserted by the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1974 (S.I. No. 224 of 1974) of the following article:-

11 "38. Where a woman who has attained pensionable age would, but for this article, be entitled in respect of any period to widow's non-contributory pension or deserted wife's allowance or unmarried mother's allowance or prisoner's wife's allowance and either old age (non-contributory) pension or old age (contributory) pension, only one such pension or allowance shall be payable.""

12 The first submission made on behalf of the Appellant is that the pension paid to the Appellant as a result of her blindness which commenced from the 3rd June 1982 is not an old-age non-contributory pension within the meaning of these regulations and that since the Appellant is admittedly not entitled to any old age contributory pension the provisions of Article 38 do not apply to her at all.

13 This submission was rejected by Blayney J. in the High Court and I am satisfied that he was correct. Theprimary modern provision for what is colloquially known as the "blind pension" occurs in the provisions of the Old Age Pensions Act 1932and, in particular, in Section 6 thereof. The material provisions of that Section are as follows:

"In lieu of Section 1 (repealed by this Act) of the BlindPersons" Act 1920, it is hereby enacted that every blind person who has attained the age of thirty years shall be entitled to receive and to continue to receive such pensions as (under the Old Age Pensions Acts 1908 to 1928, as amended by this Act, he would be entitled to receive if he had attained the age of seventy years, and the provisions of those Acts as so amended........... shall apply in all respects to such persons subject to the following modifications, that is to say, (a) For the...