State (McLoughlin) v Eastern Health Board

• Jurisdiction: Ireland
• Judgment Date: 19 November 1986
• Date: 19 November 1986
• Docket Number: [S.C. No. 288 of 1986]
• Court: Supreme Court

Supreme Court

[S.C. No. 288 of 1986]

State (McLoughlin) v. Eastern Health Board

The State (at the Prosecution of James McLoughlin)

and

The Eastern Health Board, The Minister for Social Welfare and The Attorney General

Cases mentioned in this report:—

The State (Kershaw) v. Eastern Health Board [1985] I.L.R.M. 235.

Application of Dunne [1968] I.R. 105.

The State (Williams) v. Army Pensions Board [1983] I.R. 308; [1983] I.L.R.M. 331.

Cooke v. Walsh [1984] I.R. 710; [1983] I.L.R.M. 429.

East Donegal Co-Operative v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

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

Maher v. The Attorney General [1973] I.R. 140; (1973) 108 I.L.T.R. 41.

Deaton v. The Attorney General and The Revenue Commissioners[1963] I.R. 170; (1962) 98 I.L.T.R. 99.

The State (Sheerin) v. Kennedy [1966] I.R. 379.

The State (C.) v. Minister for Justice [1967] I.R. 106; (1967) 102 I.L.T.R. 177.

In re McAllister [1973] I.R. 238.

King v. The Attorney General [1981] I.R. 233.

O'Brien v. Keogh [1972] I.R. 144.

In re Evelyn Doyle (Unreported, Supreme Court, 21st December, 1955).

Blake v. The Attorney General [1982] I.R. 117; [1981] I.L.R.M. 34.

Lynch v. United State (1934) 292 U.S. 571.

Quinn's Supermarket v. Attorney General [1972] I.R. 1.

Social welfare - Supplementary welfare allowance - Fuel allowance - Statutory right to supplementary welfare allowance - Power of Minister for Social Welfare to prescribe circumstances in which fuel allowance might be paid - Regulations providing for payment of fuel allowance - Regulation excluding persons from eligibility for fuel allowance by reference to type of social welfare payment which they received - Whether regulation ultra vires.

Statute - Statutory Instrument - Severance - Minister for Social Welfare making regulations with consent of Minister for Finance - Part of regulations ultra vires - Whether void provisions severable - Effect of severance of void provisions on scheme created by statutory instrument - Social Welfare (Supplementary Welfare Allowances) Regulations, 1977 (S.I. No. 168), art. 6, sub-art. 7(a) - Social Welfare (Supplementary Welfare Allowances) Amendment Regulations, 1985 (S.I. No. 49) - Social Welfare (Supplementary Welfare Allowances) (Amendment) (No. 2) Regulations, 1985 (S.I. No. 334) - Social Welfare (Consolidation) Act, 1981 (No. 1), ss. 3, 199, 200, 207, 208, 209 - Constitution of Ireland, 1937, Articles 15, s. 4, 50.

Appeal from the High Court.

On the 17th February, 1986, the prosecutor obtained a conditional order of certiorari from the High Court (MacKenzie J.) quashing the decisions of the first respondent refusing to award the prosecutor a fuel allowance on the grounds:—

• (a) that in so far as the prosecutor's means were insufficient to meet his needs, he was entitled to a fuel allowance pursuant to ss. 200 and 209 of the Social Welfare (Consolidation) Act, 1981.

• (b) that in so far as the Social Welfare (Supplementary Welfare Allowances) Amendment Regulations, 1985, and the Social Welfare (Supplementary Welfare Allowances) (Amendment) (No. 2) Regulations, 1985, purported to exclude from eligibility for fuel allowances persons in receipt of unemployment assistance regardless of the means of such persons, those regulations were invalid and in excess of the jurisdiction conferred on the Minister for Social Welfare by the Act of 1981.

• (c) that in so far as the exclusion of persons in receipt of unemployment assistance was within the powers conferred on the Minister by the Act of 1981, the Act was invalid having regard to the provisions of the Constitution of Ireland in that it infringed the prosecutor's right to be held equal before the law.

Cause was shown on behalf of the respondents but on the 23rd July, 1986, an order was made by the High Court (Barron J.) making the conditional order absolute notwithstanding cause shown. That order further declared that art. 6, sub-art. 7(a) of the Social Welfare (Supplementary Welfare Allowances) Regulations, 1977, as added by the Social Welfare (Supplementary Welfare Allowances) Amendment Regulations, 1985, wasultra vires the Minister for Social Welfare.

The second and third respondents appealed to the Supreme Court against the judgment and order of the High Court on the grounds, firstly, that the learned High Court judge had erred in law in holding that the Regulations of 1985 were invalid; and secondly, even if those Regulations were ultra vires, the learned High Court judge had erred in law in condemning only art. 6, sub-art. 7(a) of the Regulations of 1977, as added, and ought to have struck down the entire of the Social Welfare (Supplementary Welfare Allowances) Amendment Regulations, 1985, together with the Social Welfare (Supplementary Welfare Allowances) (Amendment) (No. 2) Regulations, 1985, which varied the maximum amount of the payment.

The appeal was heard by the Supreme Court on the 23rd October, 1986.

Section 200 of the Social Welfare (Consolidation) Act, 1981, provides:— "Subject to this Chapter, every person in the State whose means are insufficient to meet his needs and the needs of any adult or child dependant of his shall be entitled to supplementary welfare allowance."

Section 209, sub-ss. 1 and 2 of the Act of 1981 provide:—

"(1). Where the weekly amount of supplementary welfare allowance, if any, payable to a person . . . 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 —

• (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

• (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.

(2). The Minister may prescribe —

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

• (b) the amounts of payments to be made either generally or in relation to a particular class of persons."

Section 3, sub-ss. 1 and 2 of the Act of 1981 provide that:—

"(1). The Minister may [with the consent of the Minister for Finance] make regulations —

• (a) for any purpose in relation to which regulations are provided for by any of the provisions of this Act, and

• (b) for prescribing any matter or thing referred to in this Act as prescribed or to be prescribed.

(2). Except in so far as this Act otherwise provides, any power conferred thereby to make regulations may be exercised —

• (a) either in relation to all cases to which that power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case . . ."

Article 6, sub-art. 7(a) of the Social Welfare (Supplementary Welfare Allowances) Regulations, 1977, as inserted by art. 3 of the Social Welfare (Supplementary Welfare Allowances) Amendment Regulations, 1985, provided that an increase in supplementary welfare allowance or a supplementary welfare allowance, to be known as a 'fuel allowance', might be paid for the period commencing on the first Monday of October of each year to a person whose means were insufficient for his needs and who was in receipt of one of 15 listed social welfare payments.

In November, 1985, the prosecutor, who was a person in receipt of unemployment assistance, applied to the first respondent for a...