State (McLoughlin) v Eastern Health Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 23 July 1986
• Neutral Citation: 1986 WJSC-HC 1186
• Court: High Court
• Date: 23 July 1986
• Docket Number: 1986 - 136 SS

1986 WJSC-HC 1186

THE HIGH COURT

1986 - 136 SS

MCLOUGHLIN v. EASTERN HEALTH BOARD

THE STATE (McLOUGHLIN)

.V.

THE EASTERN HEALTH BOARD

Citations:

COOKE V WALSH 1984 IR 710 1984 ILRM 208, 1983 ILRM 429

KERSHAW V EASTERN HEALTH BOARD 1985 ILRM 235

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S209(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S209(1)(b)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S209(2)

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) ACT 1975 S11(1)(b)

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) REGS 1977 SI 156/77 ART 6

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) (AMDT) REGS 1985 SI 49/1985

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) 1977 SI 156/77 ART6(7)(a)

Synopsis:

MINISTER OF STATE

Powers

Exercise - Social services - Welfare benefits - Entitlement - Statutory provisions - Statutory power to prescribe circumstances in which the statutory benefit was to be paid to persons whose incomes were insufficient to meet their needs - Statutory instrument prescribing persons and classes of persons entitled to receive benefits - Statutory instrument made ~ultra vires~ the Minister - ~See~ Social Services, welfare - (1986/136 SS - Barron J. - 23/7/86)

|The State (McLoughlin) v. Eastern Health Board|

SOCIAL SERVICES

Welfare

Benefits - Entitlement - Supplementary welfare allowance - Fuel allowance - Statutory entitlement to allowance conferred by s.209(1) of the Act of 1981 on persons whose income is not sufficient to meet their needs - Minister for Social Welfare empowered by s.209(2) to prescribe "the circumstances under which a payment may be made to any person" pursuant to s.209(1) - Minister prescribed by statutory instrument (article 6 of Regulations of 1977, as amended) that fuel allowance may be paid to persons who are in receipt of any one of several specified payments - Specified payments included various allowances, benefits and pensions but did not include unemployment assistance - Applicant for fuel allowance was in receipt of unemployment assistance - Application was refused on the ground that the applicant was not in receipt of one of the payments prescribed by the Minister - Applicant sought an order quashing the decision to refuse his application, and obtained a conditional order of certiorari - Held, in making an order absolute, that the Minister had acted ~ultra vires~ in purporting to designate the persons or classes of persons entitled to obtain the statutory benefit instead of prescribing the circumstances in which the statutory benefit was to be paid to persons whose incomes were insufficient to meet their needs - Social Welfare (Supplementary Welfare Allowances) Regulations, 1977, article 6 - Social Welfare (Consolidation) Act, 1981, s.209 - (1986/136 SS - Barron J. - 23/7/86)

|The State (McLoughlin) v. Eastern Health Board|

1 Judgment of Mr. Justice Barrondelivered the 23 day of July 1986

2 The Prosecutor in in receipt of unemployment assistance. In November 1985 he applied to the Respondent for a fuel allowance as a supplementary welfare allowance. This application was refused on the ground that he was ineligible to receive it. He appealed unsuccessfully, his appeal being rejected on the ground that as a recipient of unemployment assistance he was in a category which was excluded from the scheme by the provisions of the relevant regulations. He has obtained a Conditional Order of Certiorari to quash these decisions and now seeks to have such Orde made absolute notwithstanding cause shown. As one of the grounds upon which the Conditional Order was obtained was that the relevant section of the Social Welfare (Consolidation) Act, 1981was repugnant to the provisions of the Constitution the Attorney General was joined in the proceedings for the purposes of contesting this submission. The Respondent has taken the point that the Minister for Social Welfare ought to have been joined in these proceedings as a Respondent. Counsel for the Attorney General has indicated that he has instructions to act on behalf of the Minister and accordingly the parties agreed that the proceedings were in order for hearing.

3 The Prosecutor made his application for supplementary welfareallowance under the provisions of Section 209 of the Social Welfare (Consolidation) Act, 1981. Subsection (1) is as follows.-

4 2 "(1) Where the weekly amount of supplementary welfare allowance, if any, payable to a person pursuant to section 207, and any other income, including any payment under this Act or under any other statute, of that person, is not sufficient to meet his needs, then -

5 (a) in any case where that person is in receipt of supplementary welfare allowance, the weekly amount of such allowance payable to that person may, subject to this section, be increased, or

6 (b) in any other case, a weekly payment of supplementary welfare allowance may be made, subject to this section, to supplement that person's other income."

7 The Prosecutor was not in receipt of any supplementary welfare allowance and accordingly his application was under the provisions of Section 209 (l)(b). Subsection (2) of Section 209 made provision for the Minister to prescribe relevant regulations. Subsections (2) and (3) are asfollows:-

8 (2) The Minister may prescribe -

9 (a) the circumstances under which a payment may be made to any person pursuant to subsection (1), and

10 (b) the amounts of payments to be made either generally or in realtion to a particular class of persons.

11 (3) Regulations under subsection (2) may provide for the granting of allowances in kind in relation to specified needs and for all matters ancillary to and consequent on the provision of suchallowances."

12 The relevant regulations relating to the Prosecutor'sapplication are contained in Article 6 of the Social Welfare (Supplementary Welfare Allowances) Regulations, 1977 as added to by the Social Welfare (Supplementary Welfare Allowances) (Amendment) Regulations, 1985 and are as follows:-

13 2 "6 (3) Where a person to whom Section 11 (l)(b) of the Act applies has income which is not sufficient to meet his needs, a weekly payment of an allowance may, subject to the provisions of sub-article (6) of this Article, be made to him of such amount as, when taken together...