Michael Power and Others v The Minister for Social and Family Affairs

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 28 February 2006
• Neutral Citation: [2006] IEHC 170
• Date: 28 February 2006
• Court: High Court
• Docket Number: [2004 No. 137 JR]

[2006] IEHC 170

THE HIGH COURT

[No. 137 JR/2004]

POWER & ORS v MIN FOR SOCIAL & FAMILY AFFAIRS

JUDICIAL REVIEW

BETWEEN

MICHAEL POWER, RISTEARD MORRISSEY, SUZANNE DUNNE, PAUL NEWMAN AND OWEN MCCARNEY

APPLICANTS

AND

THE MINISTER FOR SOCIAL AND FAMILY AFFAIRS

RESPONDENT

RSC O.84 r21(1)

O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 ILRM 301

CUSSEN, STATE v BRENNAN 1981 IR 181

DE ROISTE v MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

VOZZA, STATE v O FLOINN 1957 IR 227

FUREY, STATE v MIN FOR DEFENCE 1998 ILRM 89

R v STAFFORD JUSTICES 1940 2 KB 33

GLENCAR EXPLORATION PLC v MAYO CO COUNCIL 2002 1 IR 112 2002 1 ILRM 481 2003/24/5479

WEBB v IRELAND & AG 1988 ILRM 565 1987 8 2312

TARA PROSPECTING LTD v MIN FOR ENERGY 1993 ILRM 771

ABRAHAMSON & ORS v LAW SOCIETY OF IRELAND & AG 1996 1 IR 403 1996 2 ILRM 481

CANE ADMINISTRATIVE LAW 4ED 2004 205

R v SECRETARY OF STATE FOR EDUCATION & EMPLOYMENT EX PARTE BEGBIE 2000 1 WLR 1115

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE HARGREAVES 1997 1 WLR 906

R v SERETARY OF STATE FOR HEALTH EX PARTE UNITED STATES TOBACCO INTERNATIONAL INCORPORATED 1992 QB 353

UNITED STATES TOBACCO (IRL) LTD v IRELAND 1993 1 IR 241

R v NORTH & EAST DEVON HA EX PARTE COUGHLAN 2001 QB 213

KEOGH v CRIMINAL ASSETS BUREAU (CAB) & ORS 2004 2 IR 159 2004 2 ILRM 481 2004/26/6080

JUDICIAL REVIEW

Remedies

SOCIAL WELFARE

Benefit

Delay - Discretion to extend time - Good reason to extend time - Whether political campaigning good reason - Failure to provide explanation or justification barring relief - de Róiste v Minister for Defence [2001] IR 190, The State (Kelly) v District Justice for Bandon [1947] IR 258 and The State (Vozza) v District Justice Ó Floinn [1957] IR 227 considered - O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21(1) -Declaration granted (2004/137JR -MacMenamin J - 28/2/2006) [2006] IEHC170, [2007] 1 ILRM 109 Power v Minister for Social and Family Affairs

Legitimate expectation - Preconditions for legitimate expection to arise - Non-statutory scheme - Representations made to applicant - Whether legitimate expection to benefit arose - Whether sufficient overriding public interest - Balancing exercise to be carried out between interest of applicant and public interest - Abrahamson v Law Society of Ireland [1996] 1 IR 403 applied; Glencar Exploration plc v Mayo County Council (No 2) [2002] 1 IR 84 distinguished; R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 followed; Keogh v Criminal Assets Bureau [2004] 2 IR 159 applied - Declaration granted (2004/137JR - MacMenamin J - 28/2/2006) [2006] IEHC 170Power v Minister for Social and Family Affairs

Facts: The applicants were all full time students who were admitted to the Back to Education Allowance operated under the aegis of the Department of Social and Family Affairs. They asserted a legitimate expectation that the scheme as constituted when they were admitted would continue for the duration of their presence at college.

Held by McMenamin J. that while the evidence relating to the first applicant brought him within the discretionary power to extend the time within which to apply for judicial review, the remaining applicants were debarred from seeking relief. However, the conduct of the first applicant had the effect of debarring him by his own conduct from obtaining certiorari, prohibition or injunction. The first applicant was entitled to a declaration that the decision of the respondent was contrary to his legitimate expectation and was entitled to restitution, that was to be placed in the same financial position as if the decision had not been made.

Reporter: R.W.

1 JUDGMENT of Mr. Justice John MacMenamin dated the 28th day of February, 2006 .

1. Factual Background

2 The applicants named in these judicial review proceedings are all full-time students who were admitted to the Back to Education Allowance (hereinafter "the scheme") operated under the aegis of the Department of Social and Family Affairs. They were so admitted at a time when the terms and conditions of that scheme were set out in a booklet entitled "Back to Education Programme SW70" dated June 2002.

3 2. The scheme provides payments for persons in receipt of social welfare payments who decide to return to education. It is designed to promote second chance education for those who have not been to third level education. Eligible persons may return to college and continue to receive social welfare payments. Such payments may not otherwise be available, in instances, where for example the student is unavailable for full-time work and is thus ineligible for unemployment assistance. The scheme is administrative, that is set up on a non statutory basis, and was approved by a government decision. The published booklet outlines a number of ways in which a successful applicant can return to full-time or part-time education while continuing to receive income support. The programmes range from basic foundation courses through to post graduate university courses.

4 3. Under the rubric "Third Level Option" it is stated therein:

"You can attend a third level course of education at any university, third level college or institution provided that the course is a full-time day course of study and is approved by the Department of Education and Science for Higher Education Grant Scheme, the Vocational Education Committee Scholarship Scheme or the Third Level Maintenance Grant Scheme for Trainees or has Higher Education and Training Awards Council (HETAC) recognition."

5 4. The method of application is set out and refers to an application form referable to persons on unemployment benefit. Thereafter the question of the duration of the allowance is dealt with. It is stated

"The allowance is payable for the duration of the course, including all holiday periods. It is not means tested so you may also work without affecting your payment. However see overleaf regarding secondary benefits."

6 There were previous editions of the booklet. These were published in October 1999 and August 2001 and were virtually identical in terms with the June 2002 edition.

7 5. The first named applicant applied for inclusion on the scheme early in the month of August 2002. By notification dated 5th September, 2002 he was informed that his application was successful and that, subject to satisfying certain conditions, he was eligible for payment of the allowance.

8 6. The first named applicant contends that, but for the operation of the scheme and the payment of the allowance, he would have been unable to go to university due to financial reasons. One of the reasons that induced him to apply under the scheme was that the payment was an alternative to other social welfare entitlements. The applicant specifically refers to the fact that in the booklet of June 2002 it was stated

" BTEA is not an unemployment payment. Participants receive a standard rate of payment which is not means tested".

9 7. The first named applicant says that the provisions concerning payments during the summer vacation and the authorisation of supplementary income from work during that period had a large influence on his decision to return to college. He says that he planned to engage in some work during the summer to make extra money in order to pay debts associated with his return to third level education. As the payments under the scheme were not unemployment benefit there was no requirement upon him to "sign on" for this purpose. The applicant received his first payment order under the scheme on 19th September, 2002. From January 1st 2003 to May 31st 2003, and from September 15th 2003 to December 31st 2003 he was in receipt of €274.80 per week. This was made up of a personal rate of €124.80 per week, an adult dependent payment of €82.80 per week, and a child dependent payment of €16.80 per week in respect of each of his four children. As of January 1st 2004 he was in receipt of €291.40 per week further a Budget increase of €10 per week in the personal rate and €6.60 in the adult dependent allowance.

10 8. By notification dated 26th March, 2003 the first named applicant became aware that certain changes had been made to the terms of the said scheme. The respondents stated that:

"Following a review of the Back To Education Allowance (BTEA) Scheme it has been decided that, with effect from Summer 2003, the allowance will not be payable for the summer holiday period between the academic years".

11 It later transpired that the decision to alter the terms of the scheme had been made some months earlier. The first named applicant states that he was concerned by these changes and resolved to challenge them in all appropriate ways. He began by looking into the statements by the respondent on the issue.

12 In the Dail on March 27th 2003 the then Minister respondent answered questions in relation to the scheme. Specifically there appears to be some imprecision in the course of responses to questions put by an opposition deputy as to whether or not all persons in the scheme would not be affected.

13 9. On the website of the respondent's Department on 28th March, 2003 it was still stated in relation to the scheme that "you ... be paid for the full duration of your course, including holidays". However the applicant was still not entirely certain of his position and by letter dated 28th March, 2003 he wrote to the respondents to outline his concerns in relation to the changes in the scheme and to the effect that he believed they would have on his situation. It is clear that while changes were envisaged by the respondent, the precise criteria for continuing eligibility had not been finally determined.

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