Hyland v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-SC 1709
• Court: Supreme Court
• Docket Number: [S.C. No. 84 of 1988]
• Date: 01 January 1990

1989 WJSC-SC 1709

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.

84/88

HYLAND v. MIN SOCIAL WELFARE

PATRICK HYLAND

Applicant/

Respondent

and

THE MINISTER FOR SOCIAL WELFARE AND THE ATTORNEY GENERAL

Respondents/

Appellants

Citations:

SOCIAL WELFARE (NO 2) ACT 1985 S12(4)

EEC DIR 79/7

CONSTITUTION ART 29.4.2

MURPHY V AG 1982 IR 241

MUCKLEY V IRELAND 1985 IR 482, 1986 ILRM 364

CONSTITUTION ART 41.3.1

INCOME TAX ACT 1967 S192

CONSTITUTION ART 28.3.3

FINANCE ACT 1980 S21

HYLAND V MIN SOCIAL WELFARE & AG 1989 ILRM 196

Synopsis:

CONSTITUTION

Family

Marriage - Protection - Statute - Validity - Unemployment - Husband entitled to unemployment assistance - Wife entitled to unemployment benefit - Combined income of married couple reduced below total of sums payable to unmarried couple - Enactment invalid - ~See~ Social Services, benefits - (84/88 - Supreme Court - 9/5/89) -[1989] IR 640 [1990] ILRM 213

|Hyland v. Minister for Social Welfare|

SOCIAL SERVICES

Welfare

Benefits - Unemployment - Assistance - Weekly payments - Reduction - Justification - Recipient of unemployment assistance living with his wife who received unemployment benefit - Reduction of total of weekly sums payable as such assistance and benefit - Such reduction not applicable if recipient of unemployment assistance had been cohabiting with woman other than him wife - Reduction authorised by statute - Enactment invalid - Breach of State's pledge to guard with special care the institution of marriage - Held that the various benefits conferred on married couples by enactments of the Oireachtas did not alter the fact that the impugned provisions of s. 12, sub-s. 4, of the Act of 1985 penalised the married state and were invalid having regard to the provisions of Article 41.3.1 of the Constitution: ~Murphy v. The Attorney General~ [1982] I.R. 241 and ~Muckley v. Ireland~ [1986] ILRM 364 considered - Social Welfare (No.2) Act, 1985, s. 12 - Constitution of Ireland, 1937, Article 41 - (84/88 - Supreme court - 9/5/89) -[1989] IR 640 [1990] ILRM 213

|Hyland v. Minister for Social Welfare|

CONSTITUTION

Statute

Validity - Marriage - Protection - Unemployment - Husband entitled to unemployment assistance - Wife entitled to unemployment benefit - Combined income of married couple reduced below total of sums payable to unmarried couple - Enactment invalid - ~See~ Social Services, benefits - (84/88 - Supreme Court - 9/5/89) -[1989] IR 640 [1990] ILRM 213

|Hyland v. Minister for Social Welfare|

1 DECISION OF THE COURT pursuant to Article 34.4.5° of the Constitution pronounced at the direction of the Court by FINLAY C.J. on the 9th day of May 1989

2 This is an appeal brought by the Respondents against the Order of the High Court dated the 18th January 1988, made by Barrington J., by which on an application for relief by way of judicial review he declared that Section 12 subsection (4) of the Social Welfare (No. 2) 1985Act was "unconstitutional".

The impugned statutory provision

3 The Social Welfare (No. 2) Act 1985("the Act of 1985") is entitled

"An Act to provide for equal treatment for men and women in matters of social welfare and for that purpose to amend the Social Welfare Acts 1981to 1985"

4 Historically this statute was an implementation by the Oireachtas of the Equality Directive of the Council of the European Community (79/7/EEC) but the impugned provision was not a law enacted which was necessitated by the obligations of membership of the Communities and no question of the interpretation of Article 29.4.2° of the Constitution nor of any principles of European Community law arises in this appeal.

5 The provisions of Section 12(4) of the Act of 1985 read as follows:

"(4) Where one of a married couple who are living together is entitled to disability benefit, unemployment benefit, injury benefit, disablement pension, old age (contributory) pension, old age pension, retirement pension or invalidity pension and the other is entitled to unemployment assistance, the total of the amount payable to them by way of benefit or pension, as the case may be, and unemployment assistance shall not, except where regulations made by the Minister with the consent of the Minister for Finance otherwise provide, exceed the total amount of benefit or pension, as the case may be, that would otherwise be payable to the spouse entitled to benefit or pension if an increase of benefit or pension were payable to that spouse in respect of an adult dependant andif the total amount so payable to the married couple does exceed the amount that would be payable to the spouse entitled to benefit or pension, as the case may be, if he had an adult dependant, the amount of assistance payable to the spouse who is entitled to unemployment assistance shall be reduced accordingly."

The grounds of challenge

6 The grounds upon which the Applicant claimed the declaration are thus stated in the statement filed by him pursuant to the Superior Court Rules.

"(1) The provisions of Section 12 subsection (4) of the Social Welfare (No. 2) Act 1985are unconstitutional in that the said Section 12 subsection (4) provides that the Applicant shall receive a lesser sum by way of payment of unemployment assistance by reason of the fact that the Applicant is a married man who is living with his wife. If the Applicant was not married to his wife or if she ceased to reside with him he would be entitled to receive unemployment assistance at a maximum personal rate of £34.05 per week, whereas by reason of the fact that he is a married man residing with his wife the maximum personal rate of unemployment assistance which he is entitled to receive and which he is in fact receiving is the sum of £26.60 per week. By reason of the said adverse treatment of married couples the said Section 12 subsection (4) constitutes a failure on the part of the State to vindicate the institution of marriage and further constitute an unconstitutional attack upon the said institution."

7 It was submitted on behalf of the Applicant on this appeal that these grounds were intended in particular to compare the position of the Applicant and his wife living together with the position of a man living with a woman to whom he was not married but having the same unemployment assistance and unemployment benefit entitlements and having, as the Applicant and his wife have, one dependent child.

8 It is clear from the terms of the judgment of Barrington J. that it was largely on this comparison that the issues of law were determined in the High Court and this Court is satisfied that it should for the purpose of the appeal interpret the grounds in the manner in which they were interpreted in the Court below.

The decision in the High Court

9 In a careful and comprehensive reserved judgment Barrington J. applied to the issues arising before him the principles laid down by this Court in Murphy v. The Attorney General 1982 I.R. and Muckley v. Ireland 1986 ILRM, and reached the conclusion "that Section 12 subsection (4) of the Act violates the State's pledge in Article 41 Section 3 to guard with special care the institution of marriage and to protect it...