McCarthy v Minister for Education

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 25 April 2012
• Neutral Citation: [2012] IEHC 200
• Court: High Court
• Docket Number: [614 JR/2011]
• Date: 25 April 2012

[2012] IEHC 200

THE HIGH COURT

[614 JR/2011]

McCarthy & Ors v Min for Education

JUDICIAL REVIEW

BETWEEN

MEDB MC CARTHY, ROBERT JOHNSON, AND IESHA ROWAN

APPLICANTS

V.

THE MINISTER FOR EDUCATION AND SKILLS

RESPONDENTS

STUDENT SUPPORT ACT 2011 S6

B (D) v MIN FOR HEALTH 2003 3 IR 12

STUDENT SUPPORT ACT 2011 S6(2)

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

CURRAN v MIN FOR EDUCATION 2009 4 IR 300

POWER v MIN FOR SOCIAL & FAMILY AFFAIRS 2007 1 IR 543

Education – Students – Student Support Grant – Qualifying criteria – Alteration of criteria – Challenge to decision of Minister affecting applicants – Student Support Act 2011.

Facts The Student Support Act 2011 (‘2011 Act’) empowered the Minister for Education and Skills, inter alia, to alter the criteria applicable to the payment of student grants. Following the alteration of the criteria relating to distance in 2011, the three applicants sought to challenge the decision which affected their entitlement. The applicants claimed that that decision infringed s. 6 of the 2011 Act, as well as ensuring they suffered detriment having relied on a legitimate expectation the grant would be paid. They sought a number of reliefs including an order of mandamus to re-instate the previous criteria.

Held, dismissing the case, 1. that the applicants had failed to demonstrate the decision to alter the distance criteria breached s. 6 of the 2011 Act. The 2011 Act provided that students who had been awarded a grant prior to the coming into force of the Act would continue to be entitled to a grant. This did not equate to an entitlement to a fixed amount or an entitlement to continue with the same conditions attached. Further, each grant was annual in nature and no guarantee was given as to the amount of future grants.

2. Applying the test set out in Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84, the applicants could not reasonably expect the previous level of grant to continue. Even if a legitimate expectation was deemed to have been held, this expectation could be qualified by public policy interests such as the need to reduce public expenditure in the current economic climate.

Mr. Justice Hedigan

1 The first named applicant is a student at the National University of Ireland and resides at Murtyclogh, Burrin, Co. Clare. The second named applicant is a student at the Dundalk Institute of Technology and resides at Lattonalbany, Carrickmacross, Co. Monaghan. The third named applicant is a student at the Galway/Mayo Institute of Technology and resides at 35 Ashbrook, Oranmore, Co Galway. The respondent is the Minister of Government with responsibility for the provision of student grants within the State and his office is located at Marlborough Street, Dublin 1.

2. The applicant seeks the following relief's:-

2 (i) An order ofcertiorari quashing the decision of the respondent's to extend the distance for non adjacent grants to forty five kilometres or more and reducing automatic eligibility of mature students to the higher non-adjacent rate of grant in respect of the applicants.

3 (ii) An order ofmandamus restoring the non-adjacent grant in respect of the applicants to twenty four kilometres and restoring automatic eligibility of mature students to the higher non-adjacent rate of grant.

4 (iii) A declaration by way of an application for Judicial Review that the applicants had a legitimate expectation the criteria for the non-adjacent grant in respect of them as students in progression would remain constant as long as they remained students in progression.

5 (iv) A declaration by way of an application for Judicial Review that the extending of the distance for non-adjacent grants to forty five kilometres from twenty four kilometres and reducing automatic eligibility of mature students to the higher non adjacent rate of grant in respect of the applicants, as students in progression, is unfair, unjust and repugnant to the provisions of Section 6 of the Student Support Act, 2011.

6 (v) An order ofmandamus directing the respondent to reinstate the applicant's non adjacent grant.

7 (vi) A declaration by way of an application for judicial review that the respondent in extending the distance for the non-adjacent grants to forty five kilometres and reducing automatic eligibility of mature students to the higher non-adjacent rate of grant has acted in an arbitrary, capricious and or unfair manner towards the applicants as students in progression.

8 (vii) A declaration by way of an application for judicial review that the applicants hereto had a legitimate expectation that the procedures and criteria provided for in the non adjacent grant scheme and in particular the distance criteria would be adhered to and or would remain applicable whilst they remained students in progression.

9 (viii) Damages.

10 2 3.1 The applicants are students who ordinarily qualify for a student support grant. The student support grant is payable to eligible students in full-time third-level education and the rate paid varies according to a number of different factors, including the distance between the student's ordinary residence and the third-level institution. The first named applicant is a student on the Bachelor of Arts (International) course at National University of Ireland, Galway. She has completed the second year of a four year course. For her student year 2010/2011 she qualified for the full fees and special top up student grant at the non adjacent rate based on her residence being thirty nine kilometres from NUI Galway. During the student year 2010/2011 the first named applicant received by way of non-adjacent grant approximately €6,355.00. The second named applicant is currently studying business studies at Dundalk IT and has completed year two of a three year course. Due to a family bereavement, the second named applicant sat seven deferred exams in August 2011. The second named applicant qualified in the student year 2010/2011 for full fees and a special top up student grant on the non adjacent rate on the basis he resides circa twenty eight kilometres from Dundalk IT. During the student year 2010/2011 the second named applicant received by way of non-adjacent grant approximately €6,700.00. The third named applicant is studying business studies at Galway/Mayo Institute of Technology and has completed the first year of her three year course and during the student year 2010/2011 she qualified for a grant on the higher non adjacent rate given she is a mature student. During the student year 2010/2011 the third named applicant received by way of non adjacent grant approximately €6100.00.

11 3 3.2 In December 2010, the government indicated an intention to alter the distance criteria applicable for the non-adjacent grant. This alteration was confirmed by the publication of the grant scheme for the student year 2011/2012 which was published by the respondent on 1^st July, 2011. Under the Student Support Act 2011, the Oireachtas abolished the previous regime pertaining to the allocation and payment of student grants which previously had been provided for under the auspices of the Local Authorities (Higher Education Grant) Acts 1968-1992. Under Section 6 of the Student Support Act 2011, the respondent extended the distance criteria from twenty four to forty five kilometres. In the case of the third named applicant who is a mature student, by the measures introduced by the respondent she was made amenable to the adjacent rate of payment having previously been entitled to the higher non-adjacent rate of grant payment.

12 4 3.3 The applicants contend that the decision to extend the qualifying distance for non-adjacent grant rates and disallowing automatic qualification for mature students for higher non-adjacent grants is repugnant to the provisions of the Student Support Act 2011, section 6. The applicants further claim that they have a legitimate expectation that the "grant", i.e. the non-adjacent rate of student support grant, would continue in respect of each of them, and that they relied on that expectation to their respective detriments. The applicants seek, inter alia, certiorari quashing the respondent's decision and mandamus re-instating the qualification criteria for the non-adjacent rate of the student support grant.

13 2 4.1 The applicants seek to challenge the decision of the Minister following the passing of the Student Support Act 2011, to extend the distance for non-adjacent grants to 45 kilometres or more and to reduce the automatic eligibility of mature students to the higher non adjacent rate of grant. The applicants challenge essentially relies on two grounds. First, that the decision of the respondent is in breach of s. 6 of the 2011 Act and second that the decision of the respondent is in breach of the legitimate expectation of the applicants that the non adjacent grant would continue to be available to them for the duration of their courses.

14 3 4.2 Section 6 of the Student Support Act 2011 states as follows:-

"S.6 (1) The enactments specified incolumn (2) of Schedule 1 are repealed."

(2) A person attending a course who was, prior to the coming into operation of this section, awarded a grant to attend the course pursuant to -

a (a) the enactments referred to in subsection (1), or

15 (b) schemes administered by a vocational education committee whereby grants were provided to students to assist them in attending courses in higher or further education, shall, subject to the terms of the enactments or schemes, continue to receive the grant concerned until the person has completed that course and he or she shall not apply for a grant other than the grant of which he or she is in receipt.

16 (3) The enactments referred to insubsection (1) and schemes referred to in ...