McCormack v Minister for Social Protection
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 30 October 2014 |
| Neutral Citation | [2014] IEHC 489 |
| Court | High Court |
| Date | 30 October 2014 |
[2014] IEHC 489
THE HIGH COURT
BETWEEN
AND
SOCIAL WELFARE CONSOLIDATION ACT 2005 S318
SOCIAL WELFARE CONSOLIDATION ACT 2005 CH 9
SOCIAL WELFARE CONSOLIDATION ACT 2005 S189
SOCIAL WELFARE CONSOLIDATION ACT 2005 S196
SOCIAL WELFARE CONSOLIDATION ACT 2005 S196(2)
SOCIAL WELFARE CONSOLIDATION ACT 2005 S19(9)
SOCIAL WELFARE CONSOLIDATION ACT 2005 S198(1)
SOCIAL WELFARE CONSOLIDATION ACT 2005 S198(3)
SOCIAL WELFARE CONSOLIDATION ACT 2005 S198(3)(E)
SOCIAL WELFARE (CONSOLIDATED SUPPLEMENTARY WELFARE ALLOWANCE) REGS SI 412/2007 ART 9(1)
SOCIAL WELFARE (CONSOLIDATED SUPPLEMENTARY WELFARE ALLOWANCE)(AMDT)(NO.2)(RENT SUPPLEMENT) REGS SI 215/2013
SOCIAL WELFARE CONSOLIDATION ACT 2005 S188
SOCIAL WELFARE (CONSOLIDATED SUPPLEMENTARY WELFARE ALLOWANCE) REGS SI 412/2007 ART 9(2)
SOCIAL WELFARE CONSOLIDATION ACT 2005 S198
SOCIAL WELFARE CONSOLIDATION ACT 2005 CH 9 PART 3(A)
SOCIAL WELFARE CONSOLIDATION ACT 2005 PART 3
SOCIAL WELFARE CONSOLIDATION ACT 2005 S139(1)
SOCIAL WELFARE CONSOLIDATION ACT 2005 S139(1)(i)
SOCIAL WELFARE CONSOLIDATION ACT 2005 S187
E (O) v MIN FOR JUSTICE 2008 3 IR 760
FAMILY LAW ACT 1995 S8
O'LEARY & ORS v MIN FOR JUSTICE UNREP COOKE 24.2.2012 2013 1 ILRM 509 2013/41/12071 2012 IEHC 80
STATE (LYNCH) v COONEY 1982 1 IR 337
STATE (KEEGAN) v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 1 IR 642
Judicial Review – Rent Supplement – Statutory Scheme – Social Welfare – Supplementary welfare – Needs of Children – Complexity of Family Relationship – Constitutional Law – Support and dependency
In these judicial review proceedings the applicant, Mr. McCormack, contested a decision by the Department of Social Protection made in respect to rent supplement and supplementary welfare. The applicant, separated from his wife with whom he has four children, applied to the Department of Social Protection for rent supplement, a supplementary welfare allowance within the meaning of the Social Welfare Consolidation Act 2005. In his application he sought rent allowance at the maximum amount payable for a one-parent family with three children. The designated officer granted the applicant the rent allowance payable to a single person, but not in the amount sought by him, the decision expressly being based on the fact that the rent sought of €900 was in excess of the €475 monthly limit for single people. Following this the applicant successfully obtained leave to bring judicial review proceedings The applicant obtained leave on issues of the decision maker erring in law as to the proper test to be applied in considering the application of Mr. McCormack and whether the enabling legislation properly vindicates the constitutional and Convention rights of the applicant and his children and whether in the circumstances the legislation is unconstitutional. These questions within the judicial review application came before Baker J. in the High Court.
Baker J analysed the statutory scheme that provides supplementary allowance and the entitlement requirements for rent allowance. The respondents accepted that the applicant is entitled to rent supplement under the supplementary welfare allowance scheme however the issue that remained was whether the first respondent applied the correct test in the characterisation of the applicant for the purposes of assessing the maximum amount of rent supplement to which the applicant is entitled. Contemplating the lawfulness of the procedural decision by the Department of Social Protection and necessity of a judicial review, Baker J
applied the tests established in O'Leary & Ors. v. Minister for Justice Equality & Law Reform and The State (Lynch) v. Cooney [1982]. Baker J was satisfied that the decision making process was flawed as a matter of law in that the decision body took an erroneous view of the test it had to apply, and looked only to test the accommodation needs of the applicant himself without having any regard to the complexity of his family relationships, the needs of the children and their intrinsic interconnectedness with those of their father, etc. Baker J concluded that the deciding body took an overly narrow view of the test of the needs of the children for the purpose of the proper consideration of whether they are qualified within the meaning of the scheme. In regards to the constitutional dimension of the decision Baker J. didn”t consider the constitutionality of the legislation. To Baker J. the legislation did permit a decision maker to have regard to the actual circumstances of the applicant and that the definition of a qualified child did include a consideration of the true degree of support or dependency as between Mr. McCormack and his children. Baker J. deemed it appropriate that the decision be remitted to the respondents for further consideration.
JUDGMENT of Ms. Justice Baker delivered on 30th day of October, 2014
1. The applicant is a married man who separated from his wife in 2011 and entered into a formal separation agreement, the relevant terms of which I will outline below. The couple have four children ages, three, six, eight and sixteen. During the marriage the couple had a privately owned family home in the west of Ireland, and following the breakdown of the marriage, and as part of the separation agreement, the couple agreed that this premises would be transferred into the sole name of the wife on the basis therein set out and in satisfaction of certain claims of the wife to maintenance for herself and the children, and for their respective accommodation needs.
2. Following the separation, the applicant moved back to Dublin where he has lived with his parents and other family members from time to time. He is out of work and has been so for almost the entire period since he returned to Dublin.
3. In May 2012, the applicant applied to and was assessed as eligible by Fingal County Council for social housing for himself and his four children. It is not doubted that the supply of houses in Fingal is such that it is not likely that the applicant will be allocated a suitable home for a number of years.
4. On 5 th July, 2012, the applicant applied to the Department of Social Protection for rent supplement, a supplementary welfare allowance within the meaning of the Social Welfare Consolidation Act 2005 ("the Act of 2005"). In his application he sought rent allowance at the maximum amount payable for a one parent family with three children. On 16 th August, 2012, the designated officer granted the applicant the rent allowance payable to a single person , but not in the amount sought by him, the decision expressly being based on the fact that the rent sought of €900 was in excess of the €475 monthly limit for single people.
5. The applicant appealed and the appeals officer gave her decision on 13 th December, 2012 disallowing the application. The stated reason was that the accommodation needs of the children "were already met in the home of their mother".
6. Following on the unsuccessful appeal under this statutory scheme, the applicant obtained the assistance of the Northside Community Law Centre and application was made on his behalf by his solicitor to the Chief Appeals Officer, the second named respondent in these proceedings, requesting her to carry out a review pursuant to s. 318 of the Act of 2005, of the decision of 13 th December, 2012.
7. On 13 th November, 2013, the Chief Appeals Officer gave a reasoned written decision, in which she stated she found no basis for reviewing the decision of the Appeals Officer of 13 th December, 2012. The decision states that as the deciding officer and the appeals officer had considered that:
"as the housing and other basic needs of the children were met by their primary carer and the applicant received no increase in respect of those children on his primary social welfare payment, they were not dependent on the appellant for support and could not be regarded as dependent children."
8. Leave to issue judicial review proceedings was granted by Peart J. on 2 nd day of December 2013. In summary the grounds are two fold:
(a) The decision maker erred in law as to the proper test to be applied in considering the application of Mr. McCormack. This is a classic ground of review and the challenge is that the deciding body failed to have regard to any relevant considerations, and misconstrued the test to be applied.
(b) Whether the enabling legislation properly vindicates the constitutional and Convention rights of the applicant and his children and whether in the circumstances the legislation is unconstitutional.
The parties have agreed an issue paper and have identified the first issue as
"whether the decision to limit rent supplement to the amount payable to a single man in November 2013 is ultra vires because the first and/or second named respondents erred in law as to the applicable test to be applied to a determination of eligibility for rent supplement and thereby failed to have regard to relevant considerations and/or to make a decision within jurisdiction having regard to the requirement to interpret legislation in a constitutionally and Convention compatible manner."
9. Chapter 9 of the Act of 2005, sets out a statutory scheme for the payment of supplementary welfare allowances which has been described by the respondents as a form of "safety net" within the overall social welfare system in that it provides assistance to eligible persons in the State whose means are insufficient to meet their needs and/or those of their...
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Fagan v Dublin City Council
...when it comes to statutory interpretation. Second, reliance was placed by Mr Fagan on McCormack v. Minister for Social Protection [2014] IEHC 489, a rent-support case, to support the proposition that a decision-maker should not take an unduly "blinkered" approach to the relevant facts in a......