McHugh v Minister for Social Welfare

• Jurisdiction: Ireland
• Judgment Date: 01 January 1994
• Date: 01 January 1994
• Docket Number: [1990 No. 9 J.R.]
• Court: Supreme Court

High Court

Supreme Court

[1990 No. 9 J.R.]

McHugh v. Minister for Social Welfare

Susan McHugh

Applicant

and

A.B. (Deciding Officer), The Minister for Social Welfare and The Attorney General

Respondents

Cases mentioned in this report:—

Cassidy v. Minister for Industry and Commerce [1978] I.R. 297.

Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381.

Cooke v. Walsh [1984] I.R. 710; [1984] I.L.R.M. 208.

Harvey v. Minister for Social Welfare [1990] 2 I.R. 232; [1990] I.L.R.M. 185.

The State (Furey) v. Minister for Defence [1986] I.L.R.M. 89.

Social welfare - Benefit - Two distinct entitlements - Disability benefit - Unmarried mother's allowance - Minister - Regulations - Applicant satisfying statutory requirements for both payments - Disability benefit disallowed by virtue of ministerial regulation - Whether refusal within powers conferred by statute - Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1974 (S.I. No. 224) - Social Welfare (Overlapping Benefits) (Amendments) Regulations, 1987 (S.I. No. 344) - Social Welfare (Consolidation) Act, 1981 (No. 1), ss. 18, 130 and 197.

Statute - Interpretation - Delegated legislation - Proper ambit - Two distinct statutory entitlements - Disability benefit - Unmarried mother's allowance - Minister - Regulations - Applicant satisfying requirements of both payments - Disability disallowed by virtue of ministerial regulation - Whether refusal within powers conferred by statute - Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1974 (S.I. No. 224) - Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1987 (S.I. No. 344) - Social Welfare (Consolidation) Act, 1981 (No. 1), ss. 18, 130 and 197.

Judicial Review.

On the 4th April, 1990, the applicant applied for and obtained in the High Court (Johnson J.) leave to apply by way of judicial review for an order of certiorari and declaratory relief. The application was made by originating notice of motion on the grounds set out in her statement of grounds dated the 3rd April, 1990. Notice of opposition was filed on the 18th June, 1990, and the application was heard by the High Court (Lavan J.) on the 16th July, 1990.

The respondents appealed to the Supreme Court against the judgment and order of the High Court.

The appeal was heard by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaherty and Egan JJ.) on the 23rd January, 1992.

Section 130 of the Social Welfare (Consolidation) Act, 1981, provides that in cases where more than one benefit, assistance or allowance is payable to a person, the Minister for Social Welfare may by regulation "provide for adjusting any such benefit, assistance or allowance (including disallowing payment thereof either wholly or partly) that may be payable to such person . . ."

Section 18, sub-s. 1 of the same Act provides inter alia that "a person shall be entitled to disability benefit in respect of any day of incapacity for work . . . which forms part of a period of interruption of employment, if - (a) he is under pensionable age on the day for which the benefit is claimed, and (b) he satisfies the contribution conditions in section 19."

Section 197 of the Act provides that a social assistance allowance shall, subject to regulations, be paid to an unmarried mother with at least one qualified child residing with her and satisfying the relevant means test.

On the 21st December, 1987, the second respondent by order made the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1987 (which was in substitution for art. 4 of the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1974) with effect from the 1st January, 1988. By art. 5 thereof disability benefit was disallowed for persons in receipt of unmarried mothers allowance.

The applicant was an unmarried mother whose child was born on the 8th December, 1987. She had been in full time employment from which she was dismissed in September, 1988. On the 13th September, 1988, she claimed unemployment benefit and on the following day claimed unmarried mother's allowance, both of which benefits were granted. In September, 1989, she suffered serious attacks of epilepsy rendering her incapable of work. She ceased claiming unemployment benefit and on the 26th September, 1989, applied for disability benefit by reason of her epilepsy, and for which she had paid sufficient qualifying social insurance contributions. The applicant's claim for disability benefit was refused on the 4th October, 1989, by the first respondent, a deciding officer within the Department of Social Welfare by reason of the provisions of art. 5 of the Regulations of 1987.

The applicant obtained leave to apply by way of judicial review for an order of certiorari quashing the deciding officer's decision and a declaration that, as she had satisfied the necessary contribution conditions, she was therefore entitled to both unmarried mother's allowance and disability benefit. Upon the respondents filing grounds of opposition it was

Held by Lavan J., in granting the reliefs sought, 1, that the applicant was at all material times entitled to both benefits by virtue of ss. 18 and 197 of the Act of 1981.

2. That s. 130 of the same Act did not confer any power upon the Minister to delimit or disallow the applicant's statutory entitlements to cither benefit.

3. That there was no ministerial entitlement to delimit or disallow or elect between payment of either or both benefits.

The Minister appealed to the Supreme Court, where it was

Held by the Supreme Court (Finlay C.J., Hederman, McCarthy and O'Flaherty JJ.; Egan J. dissenting), in dismissing the appeal, that art. 5 of the Regulations of 1987, which was substituted for art. 4 of the Regulations of 1974, whereby the applicant in receipt of an allowance (unmarried mothers) lost a benefit (disability) based upon her contributions but would not have lost unemployment benefit, but for her disability, was so illogical, arbitrary or unfair as to be ultra vires the relevant sections of the Act of 1981.

Cassidy v. Minister for Industry and Commerce [1978] I.R. 297 applied.

Per Finlay C.J: That general provisions in the Social Welfare code as a whole prohibiting the taking into account of social welfare payments and allowance, in calculating the means test should yield to the particular power conferred by s. 130 of the Act of 1981 entitling the Minister to make regulations to provide for overlapping benefits or allowances. So much of the decision in Harvey v. Minister for Social Welfare[1990] 2 I.R. 232 as held otherwise was arrived at per incuriam.

Harvey v. Minister for Social Welfare [1990] 2 I.R. 232 considered.

Per McCarthy J.: Where an entitlement to allowance or benefit is provided by primary legislation, it is desirable that its restriction be provided in the like manner.

Per Egan J., dissenting: Notwithstanding their harsh effect, there was nothing patently unreasonable in the Regulations, on the unambiguous wording of s. 130 of the Act of 1981: the Court is not concerned with social policy.

Cur. adv. vult.

Lavan J.

This was an application for an order of certiorari to remove for the purpose of being quashed the decision of the first respondent made in or about the 4th October, 1989, to refuse the payment of disability benefit to the applicant on the ground that she was not entitled to disability benefit under the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1987, which said decision was evidenced by a letter dated the 4th October, 1989, from the Social Welfare Services Office of the Department of Social Welfare and for other relief Liberty to apply for such orders was granted by Johnson J. by order dated the 4th April, 1990. The application came before me on the 16th July, 1990.

The facts upon which the application arise are not in dispute. The applicant is an unmarried mother. She has one child who was born on the 8th December, 1987. From in or about 1985 until September, 1988, the applicant worked as a machinist with a clothing manufacturer in south County Dublin. At all material times she resided with her mother. She and her child continue so to do and she continues to contribute money on a weekly basis to the family pool. She has suffered epilepsy since the age of 15 years. On the 8th December, 1987, her child was born. In September, 1988, she was dismissed from her employment. As a result she claimed unemployment benefit on the 13th September, 1988. She received a weekly payment of £52.40 from the 16th September, 1988, made up of a personal allowance of £43.60 together with an increase of £10.60 in respect of her dependant child. On the 14th September, 1988, she claimed an unmarried mother's allowance. She was assessed as being a person with nil means and was on the 18th September, 1988, (with effect from the 14th September, 1988) awarded such allowance as constituted the maximum rate of allowance then applicable, namely £66.10.

Following that award of the unmarried mother's allowance the applicant's entitlement to her first allowance, the unemployment benefit, was reduced by one half of the personal rate of payment by the first respondent pursuant to the provisions of art. 4 of the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1987, with effect from the 1st January, 1988.

Article 4 provides:—

"4. In these Regulations —

'the Principal Act' means the Social Welfare (Consolidation) Act, 1981;

'the Principal Regulations' means the Social Welfare (Overlapping Benefits) Regulations, 1953 (S.I. No. 14 of 1953);

'blind pension' means a pension payable under section 175 of the Principal Act.

• 5. Article 4 of the Principal Regulations (as amended by the Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1974 (S.I. No. 224 of 1974)) is hereby amended by the substitution for sub-articles (1), (2), (3) and (4) of that article by the following sub-articles:—

'4. (1) Subject to...