The State (Kershaw) v Eastern Health Board

• Jurisdiction: Ireland
• Judge: Finlay P.
• Judgment Date: 01 January 1985
• Neutral Citation: 1985 WJSC-HC 477
• Docket Number: No. 263 S. S./1984
• Court: High Court
• Date: 01 January 1985

KERSHAW v. EASTERN HEALTH BOARD

THE STATE AT THE PROSECUTION OF RITA KERSHAW

Prosecutrix

and

THE EASTERN HEALTH BOARD

Respondents

1985 WJSC-HC 477

No. 263 S. S./1984

THE HIGH COURT

Synopsis:

Powers

Exercise - Social services - Welfare benefits - Entitlement - Statutory provisions - Statutory regulations - Departmental memorandum purporting to exclude persons from benefits - Terms of memorandum made ultra vires the statute - Memorandum not equivalent to exercise by Minister of statutory powers - (1984 No. 263 SS - Finlay P. - 12/11/84).

The State (Kershaw) v. Eastern Health Board

SOCIAL SERVICES

Welfare

Benefits - Entitlement - Supplemental welfare benefit - Exclusion by departmental memorandum - Exclusion not authorised by statute or by statutory regulation - Memorandum not equivalent to exercise by Minister of statutory powers - Social Welfare (Consolidation) Act, 1981, ss. 200, 209 - (1984 No. 263 SS - Finlay P. - 12/11/84).

The State (Kershaw) v. Eastern Health Board

STATE SIDE

Certiorari

Welfare - Benefit - Refusal - Department of State - Refusal made ultra vires statute and statutory regulations - (1984 No. 263 SS - Finlay P. - 12/11/84).

The State (Kershaw) v. Eastern Health Board

Citations:

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S200

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S205(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S209

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S209(2)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S209(3)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S310 SCH 6

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S312(2)

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) ACT 1975 S11

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

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) ACT 1975 S9

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) REGS 1977 SI168/1977168/1977

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) REGS 1977 SI168/1977RET 6(1)

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) REGS 1977 SI168/1977REG 6(2)

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) REGS 1977 SI168/1977REG 6(3)

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) REGS 1977 SI168/1977REG 6(5)

SOCIAL WELFARE (SUPPLEMENTARY WELFARE ALLOWANCES) REGS 1977 SI168/1977REG 6(6)

SOCIAL WELFARE ACT 1975

SOCIAL WELFARE ACTS 1952–1975

1 Judgment delivered on the 12th day of November 1984 by Finlay P.

2 This is an application to make absolute nothwithstanding cause shown a Conditional Order of Certiorari granted by the High Court on the 28th day of May 1984 directing the Respondents to bring before the Court for the purpose of being quashed a decision of refusal by them of the application of the Prosecutrix for a Supplementary Welfare Allowance in respect of fuel and also to bring before the Court a decision refusing an appeal by the Prosecutrix from the said refusal made pursuant to Section 205 (1) of the Social Welfare (Consolidation) Act, 1981.

3 The material facts appearing from the affidavits filed are as follows.

4 The Prosecutrix is a married woman who married on the 30th August 1980 having on the 25th December 1976 given birth to a son of whom her husband is not the father. The father of the said child made no financial contribution towards his upkeep and does not do so at present. The Prosecutrix husband deserted her a very short time after the marriage and does not now support her. The Prosecutrix was at all times material to this application unemployed and was at the time of the application hereinafter referred to in receipt of Unemployment Benefit of £56.00 per week out of which she had to maintain herself and her infant son. The Prosecutrix was, I am satisfied, in considerable financial difficulties in the months of September, October and November of 1983 and in particular had difficulty in providing fuel and heating for the flat in which she and her son lived. She accordingly applied on the 20th November 1983 to the Respondents for Supplementary Welfare Allowance in respect of fuel under the "National Fuel Scheme" operated by the Respondents in pursuance of their functions under Section 209 of the Social Welfare (Consolidation) Act, 1981.

5 From the affidavit filed on behalf of the Respondents by Mr. Fred Donohue, a Programme Manager employed by the Respondents, it is clear that upon investigation this application was refused upon the grounds that the Applicant was ineligible for Supplementary Welfare Allowance in respect of fuel because she was in receipt of Unemployment Benefit.

6 An appeal was lodged by the Prosecutrix against that determination on the 17th January 1984 under Section 205 (1) of the Act of 1981 and this again was refused upon the same grounds.

7 On the 22nd of June 1983, a circular was issued by the Department of Social Welfare to the Chief Executive Officer of the Respondents dealing with the National Fuel Scheme for 1983/1984. The material paragraphs of that circular are as follows.

8 At Paragraph 3, it is stated

"Persons eligible under the Scheme will be those who are unable to provide for their heating needs from their own resources. It is envisaged, therefore, that beneficiaries will mainly be recipients of one of the following payments;"

9 A list of various types of Social Welfare payments is then appended including Old Age Pensions, Blind Pensions, Unmarried Mothers Allowances and other similar allowances....