Lowth v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: HAMILTON C. J.
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IESC 1
• Docket Number: [1989
• Date: 01 January 1999
• Court: Supreme Court

LOWTH v. MIN FOR SOCIAL WELFARE & ATTORNEY GENERAL

BETWEEN:

ANTHONY LOWTH AND ANGELA LOWTH

AND MARK LOWTH (MINORS) SUING BY

THEIR FATHER AND NEXT FRIEND, ANTHONY LOWTH

Plaintiffs/Appellants

and

THE MINISTER FOR SOCIAL WELFARE AND THE ATTORNEY GENERAL

Defendants/Respondents

[1998] IESC 1

HAMILTON C.J.

O'FLAHERTY J.

BARRINGTON J.

KEANE J.

MURPHY J.

136/94

THE SUPREME COURT

Synopsis

- [1998] 4 IR 333 - [1999] 1 ILRM 5

Before the passing of the Social Welfare Act 1989, deserted husbands were not entitled to a similar allowance to deserted wives. The Department of Social Welfare justified this disparity by pointing out that, in 1991, only 31% of married women were in the labour force and the average weekly earnings of female workers in industry was only 59% of the earnings of corresponding male workers. Accordingly, deserted wives were treated more favourably than deserted husbands in respect of social welfare payments between 1970 and 1990.

The plaintiff challenged the constitutionality of the 1981 Act, on the basis that it discriminated against him on grounds of his sex. The Court reiterated that a law passed by the Oireachtas is presumed to be constitutional unless the contrary is clearly established. That presumption of constitutionality applies particularly to social, economic and medical laws. The Courts will grant considerable latitude to the Oireachtas in framing tax laws. While Article 40 of the Constitution forbids invidious discrimination, it does not require identical treatment of all citizens. The Court so held in dismissing the appeal.

Citations:

EEC DIR 79/7

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S100

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S101

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S102

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S103

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S195

SOCIAL WELFARE ACT 1989 S6

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S198A

SOCIAL WELFARE ACT 1992 S25

CONSTITUTION ART 40.1

SOCIAL WELFARE ACT 1970

SOCIAL WELFARE ACT 1973

PIGS MARKETING BOARD V DONNELLY 1939 IR 413

RYAN V AG 1965 IR 294

MADIGAN V AG 1986 ILRM 136

O'BRIEN V KEOGH 1972 IR 144

HARTLEY, STATE V GOV OF MOUNTJOY PRISON UNREP O DALAIGH 21.12.1967

MURPHY V AG 1982 IR 241

BRENNAN V AG 1983 ILRM 449

MARRIED WOMENS PROPERTY ACTS 1882–1907

MARRIED WOMENS STATUS ACT 1957

CIVIL SERVICE REGULATION ACT 1956

CIVIL SERVICE (EMPLOYMENT OF MARRIED WOMEN) ACT 1973

1 14th day of July 1998 by the Chief Justice pursuant to the provisions of Article 34.4.5 of An Bunreacht [Delivered By HAMILTON C. J.

HAMILTON C. J.

2 This is an appeal brought by the above named Anthony Lowth on his own behalf and on behalf of his children, the minors named in the above entitled proceedings, against the judgment of Mr. Justice Costello, as he then was, delivered on the 16th day of December, 1993 and the Order made in pursuance thereof, whereby the said Plaintiff's claim was dismissed.

3 The facts relevant to, and the nature of, the claim made by the said Plaintiff (hereinafter referred to as the Appellant) on his own behalf and on behalf of his children, the minors herein, are set forth in the judgment of the learned trial judge as follows:-

"The plaintiff was married on the 22nd December, 1979. There were two children of his marriage, Angela born on the 8th December, 1980, and Mark, born on the 9th February 1982. On the 3rd March, 1984 he and his young children were deserted by his wife. The plaintiff at the time was employed in a building firm. He had no one to help him rear and care for his children and having tried to maintain his position in the firm on apart-time basis he was eventually forced to give it up so that he could look after his two young children. When they got older and developed to a stage when they did not require his full-time attention he attempted to find employment but unfortunately failed. He has, since he had to give up his employment, been dependent firstly on unemployment benefit, and later on unemployment assistance, augmented by social assistance payments. His claim in these proceedings arises from the fact that a deserted wife would in circumstances similar to his have been eligible to qualify for the receipt of what is called "deserted wife's benefit" under the provisions of the Social Welfare (Consolidation) Act, 1981. His claim is:-

(a) that he and his children have been entitled to receive less income than a deserted wife and her children are entitled to,

(b) that he has thus been discriminated against by reason solely of his sex in contravention of Council Directive 79/7/EEC, and,

(c) that the provision of the 1981 Act which makes provision for deserted wives but not for deserted husbands in similar situations is in breach of the plaintiff's constitutional rights and is therefore unconstitutional."

4 While the Community law issue was originally in the forefront of the Appellant's claims, this claim was abandoned by Counsel for the Appellant in the light of a decision of the European Court of Justice and it was accepted that the legislation sought to be impugned did not contravene the provisions of Council Directive 79/7/EEC as originally claimed.

5 Consequently, the only issue which arose for decision in the High Court was the constitutional issue.

6 In the amended Statement of Claim delivered on behalf of the Appellant, the Appellant claimed, inter alia,:-

7 (d) A Declaration that the provisions of the Social Welfare (Consolidation) Act, 1981, Part 2, Chapter 13, Sections 100 to 103 and Part 3, Chapter 5, Section 195 (as amended) containing special provisions for deserted wives, are unconstitutional as they breach the Plaintiffs constitutional rights pursuant to Article 40, Section 3, of the Constitution and the guarantee of equal treatment pursuant to Council Directive 79/7/EEC.

8 (f) A Declaration that the failure on the part of the first named Defendant to treat the first-named Plaintiff in a similar manner to a deserted wife similarly situated amounts to a breach of the Plaintiffs" rights under Article 40.1 of the Constitution of Ireland.

9 (g) A Declaration that the failure on the part of the first-named Defendant to treat the first-named Plaintiff in a similar manner to a deserted wife similarly situated amounts to a breach of the Plaintiffs" rights under Article 40.3 of the Constitution of Ireland.

10 (h) A Declaration that the failure on the part of the first-named Defendant to treat the first-named Plaintiff in a similar manner to a deserted wife similarly situated amounts to a breach of the Plaintiffs" rights under Article 41 of the Constitution of Ireland.

Impugned Provisions

11 As appears from the said claims, the impugned provisions of the Social Welfare code are -

12 Sections 100-103 of the Social Welfare (Consolidation) Act, 1981(hereinafter referred to as the Act of 1981)

13 and

14 Section 195 as amended.

15 Section 100 of the Act of 1981 provides that:-

16 2 "(1) Subject to this Act, deserted wife's benefit shall be payable to a woman who -

17 (a) has been deserted by her husband,

18 (b) if she is less than 40 years of age, has at least one qualified child residing with her,

19 (c) satisfies the contribution conditions in section 101, and

20 d) satisfies such other conditions as may be prescribed.

21 (2) The circumstances in which a woman is to be regarded for the purposes of this section as having been deserted by her husband shall be determined in accordance with regulations made under section 195(4)(a).

22 (3) A child shall be a qualified child for the purposes of this section in relation to a woman if, on the assumption that her husband were dead, such child would be a qualified child in relation to her for the purposes of a widow's (contributory) pension under this Part.

23 (4) For the purposes of this Chapter "yearly average" means the average per contribution year of contribution weeks in respect of which the husband (or claimant) has qualifying contributions, voluntary contributions or credited contributions in the appropriate period specified in section 101(l)(b)."

24 It is not necessary to set out the provisions of Sections 101 to 103 because these sections merely set forth the conditions of receipt, the rates of benefit and provide for increases including increases for child dependants.

25 The relevant portion of Section 195 of the Act of 1981 provides that:-

26 2 "(1) A deserted wife's allowance shall, subject to regulations, be paid to a woman -

27 (a) who has been deserted by her husband,

28 (b) who, if she is less than 40 years of age, has at least one qualified child residing with her, and

29 (c) who satisfies the conditions as to means specified for the purposes of this subsection by regulations.

30 (2) The rate of a deserted wife's allowance shall be the same as the rate of the widow's (non-contributory) pension which would be payable to the woman under Chapter 4 if she were a widow."

31 Section 100 of the Act provided for the payment of a deserted wife's "benefit" and Section 195 provided for the payment of a deserted wife's "allowance".

32 No provision was made in the Act of 1981 for the provision of either "a benefit" or an "allowance"to deserted husbands, including the Appellant.

33 The Act of 1981 was, however, amended by Section 6 of the Social Welfare Act, 1989, the relevant portion of which provides:-

34 2 "198B. - (1) A deserted husband's allowance shall, subject to regulations, be paid to a man who -

35 (a) has been deserted by his wife,

36 (b) has at least one qualified child residing with him, and

37 (c) satisfies the conditions as to means for entitlement to a widow's (non-contributory) pension under Chapter 4 of Part III.

38 (2) The rate of a deserted husband's allowance payable to a person shall be the same as the rate of...