Murphy v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 09 July 1987
• Neutral Citation: 1987 WJSC-HC 2010
• Docket Number: no. 39/1987,[1987 No. 39 J.R.]
• Court: High Court
• Date: 09 July 1987

1987 WJSC-HC 2010

THE HIGH COURT

Blayney

no. 39/1987

MURPHY v. MIN SOCIAL WELFARE

JUDICIAL REVIEW

BETWEEN

DOMINIC F. MURPHY

APPLICANT

AND

THE MINISTER FOR SOCIAL WELFARE

RESPONDENT

Citations:

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S111

INDUSTRIAL RELATIONS ACT 1946 S10(4)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S2

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S5(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 FIRST SCHED PARA 1

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 FIRST SCHED PARA 3

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S111(1)(f)

INGLE V O'BRIEN 109 ILTR 7

MORAN V O'BRIEN 1976 IR 400

COUNCIL OF CIVIL SERVICE UNIONS & ORS V MIN CIVIL SERVICE 1984 3 AER 935, 1985 AC 374, 1981 1 WLR 1174

RSC O.84 r21

O'BRIEN V TIPPERARY BOARD OF HEALTH 1938 IR 761

CARVILL V IRISH INDUSTRIAL BANK LTD 1969 IR 325

INDUSTRIAL RELATIONS ACT 1946 S10

GLOVER V BLN LTD 1973 IR 388

MCLOUGHLIN V MIN SOCIAL WELFARE & BYRNE 1958 IR 1

SOCIAL WELFARE ACT 1952 FIRST SCHED PARA 3(a)

SOCIAL WELFARE (MISCELLANEOUS PROVISIONS) ACT 1960 S14

INDUSTRIAL RELATIONS ACT 1946 S10(6)

Synopsis:

EMPLOYMENT

Civil servants

Office holder - Labour Court - Member - Social welfare - Contributions of member - Rate of contributions - Dispute - Reference to deciding officer - Appeal from affirmation by appeals officer of decision of deciding officer - Held that the applicant had been employed in the civil service of the State - ~See~ Judicial Review, certiorari (1987/39 JR - Blayney J. - 9/7/87) 1987 IR 295

|Murphy v. Minister for Social Welfare|

JUDICIAL REVIEW

Certiorari

Social welfare - Deciding officer - Jurisdiction - Question posed - Illegality of decision - Failure of deciding officer to understand and apply the law which regulated the performance of his functions - The applicant was appointed to be a member of the Labour Court - That court was established by s.10 of the Act of 1946 for the purpose of promoting harmonious relations between workers and employers, and of establishing machinery for regulating rates of remuneration and conditions of employment, and for the prevention and settlement of trade disputes - From 1/7/74 to 23/7/84, when he retired, the applicant had paid insurance contributions under Social Welfare Acts at the rate (class B) applicable to permanent and pensionable civil servants - Early in 1984 the Department of Social Welfare expressed the view that class A was the proper rate of contribution for the applicant - To resolve the matter, the applicant signed a form submitting the issue to a deciding officer for his decision under s.111 of the Act of 1981 - That form offered a choice of decisions, ~viz.~, a decision on whether the employment described thereon was insurable employment, a decision stating the rate of contribution payable by the employer, and a decision stating the identity of the employer - The applicant struck out the first and third, thus seeking a decision stating the rate of contribution payable by his employer - The deciding officer decided on 31/7/84 that the applicant was not employed in insurable employment for the purposes of the Social Welfare Acts and, when asked to state his reasons, replied that the applicant, as a member of the Labour Court, was not employed under a "contract of service" - Section 5, sub-s. 1(a), of the Act of 1981 states that any person over 16 years old and under pensionable age and who is employed in any of the employments specified in Part 1 of the first schedule to that Act shall, subject to the provisions of the Act, be an employed contributor for the purposes of the Act - Paragraph 1 of Part 1 of that schedule specifies "employment in the State under any contract of service" and para. 3 specifies "employment in the civil service of the Government or the civil service of the State" - The decision of the deciding officer was affirmed on 30/10/85 by an appeals officer for the same reason - Having obtained leave on 2/2/87, the applicant applied to the High Court for an order of certiorari quashing the decisions of the deciding officer and the appeals officer - The applicant also sought an order declaring that he had been in insurable employment for the purpose of the Act of 1981 - Held that the jurisdiction of the deciding officer was co-extensive with the issue raised in the question posed by the applicant and that, in answering an extraneous question, the deciding officer had acted ~ultra vires~ - Held that, even if the applicant had sought to raise the issue whether his employment was insurable, the deciding officer had failed to apply the proper test by determining whether the applicant's employment was one of the employments specified in Part 1 of the first schedule to the Act of 1981 - Held that, even if the applicant had sought to raise, in his appeal to the appeals officer, the issue whether his employment was insurable, the appeals officer had likewise failed to apply the proper test - Held that the decisions of the deciding officer and the appeals officer were also vulnerable on the ground of illegality since they had failed to understand and apply the law which regulated the discharge of their functions, and were thus in breach of the principle stated in ~Council of Civil Service Unions v. Minister for the Civil Service~ [1984] 3 All ER 935, 950h - Held that there were good reasons for extending the period within which the application for judicial review should have been made in accordance with order 84, r.21, of the Rules of 1986 - Held, accordingly, that the decisions of the deciding officer and the appeals officer should be quashed - Held that the applicant had been the holder of an office but that he had not been employed under a contract of service: ~Glover v. B.L.N. Ltd.~ [1973] IR 388 considered - Held that the applicant had been employed in the civil service of the State and that he was entitled to a declaration that he had been, as an ordinary member of the Labour Court, in insurable employment for the purpose of the Act of 1981 - Rules of the Superior Courts, 1986, order 84, r.21 - Industrial Relations Act, 1946, s.10 - Social Welfare (Consolidation) Act, 1981, ss.5, 111 - (1987/39 JR - Blayney J. - 9/7/87) 1987 IR 295

|Murphy v. Minister for Social Welfare|

LABOUR COURT

Member

Social welfare - Contributions - Rate - Dispute - Deciding officer - Jurisdiction - Failure of deciding officer to answer question posed to him - Rate of contributions applicable to ordinary member of the Labour Court - ~See~ Judicial Review, certiorari - (1987/39 JR - Blayney J. - 9/7/87) 1987 IR 295

|Murphy v. Minister for Social Welfare|

PRACTICE

Time limit

Extension - Certiorari - Social welfare - Deciding officer - Appeal - Decision affirmed by appeals officer - Adverse decision made on 31/7/84 and affirmed on 30/10/85 - On 2/2/87 the applicant applied for an order of certiorari quashing the decision and the affirmation - After the affirmation, the applicant had corresponded with the respondent in an unsuccessful attempt to obtain some benefit for the applicant's wife from the contributions made by the applicant between 1974 and 1984, or to be allowed to become a voluntary contributor - On 3/12/86 it became clear that the applicant's attempts had failed - Held that there were good reasons to extend the period within which the application for judicial review should have been made in accordance with order 84, r.21, of the Rules of the Superior Courts, 1986 - (1987/39 JR - Blayney J. - 9/7/87) 1987 IR 295

|Murphy v. Minister for Social Welfare|

SOCIAL SERVICES

Welfare

Contributions - Rate - Dispute - Deciding officer - Jurisdiction - Failure of deciding officer to answer question posed to him - Rate of contributions applicable to ordinary member of the Labour Court - ~See~ Judicial Review, certiorari - (1987/39 JR - Blayney J. - 9/7/87) 1987 IR 295

|Murphy v. Minister for Social Welfare|

TRIBUNAL

Decision

Review - Certiorari - Social welfare - Contributions - Rate - Dispute - Reference to deciding officer - Jurisdiction of officer - Jurisdiction co-extensive with issue raised in question posed by applicant - Failure of officer to answer posed question - Decision of officer answered extraneous question - Decision made ~ultra vires~ the deciding officer - Decision quashed on certiorari - ~See~ Judicial Review, certiorari - (1987/39 JR - Blayney J. - 9/7/87) 1987 IR 295

|Murphy v. Minister for Social Welfare|

WORDS AND PHRASES

"Civil service"

Labour Court - Member - Employment - Social welfare - Contributions - Rate of contributions - Member employed in civil service of the State - ~See~ Judicial Review, certiorari - (1987/39 JR - Blayney J. - 9/7/87)

|Murphy v. Minister for Social Welfare|

1 Judgment of Mr. Justice Blayneydelivered the 9th day of July 1987.

2 This is a Motion on Notice by way of Judicial Review seeking an Order of Certiorari quashing the decisions of a Deciding Officer and Appeals Officer respectively under the Social Welfare (Consolidation) Act 1981and claiming in addition that the Applicant's employment was insurable under that Act.

The Facts:

3 In August, 1969 the Applicant was appointed under section 10 subsection (4) of the Industrial Relations Act 1946to be an ordinary member of the Labour Court. His appointment was for a period of five years and on the termination of his initial period he was re-appointed for further periods until he retired on the23rd July, 1984. Between the 1st August, 1974 and the date of his retirement the Applicant paid insurance contributions under the Social Welfare Acts at the class "B" rate which is the rate applicable to permanent and pensionable Civil Servants.

4 Early in 1984 it came to the knowledge of the Applicant that another ordinary member of the Labour Court had been informed by the Department of Labour that the Department of Social Welfare had advised that the correct rate of contribution for ordinary members of the Labour Court was the class "A" rate. Subsequently...