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Cite as: [1988] IEHC 30

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THE HIGH COURT

JUDICIAL REVIEW

No. 61 of 1987

BETWEEN:

ANN COTTER

Applicant

And

THE MINISTER FOR SOCIAL WELFARE AND

THE ATTORNEY GENERAL

Respondent

Judgment of the President of the High Court delivered on the

10^th day of June 1988

The Applicant herein is a married woman, residing with her husband, Patrick, and two children Louise and David, who were born respectively on the 7th day of July 1981 and the 2nd day of October 1983, at 25 Griffith Court, Fairview in the City of Dublin.

Prior to the month of January 1984, the Applicant had been in continuous insurable employment with McCairns Motors Limited. In that month she was made redundant and duly applied for unemployment benefit and pay related benefit.

She was paid unemployment benefit at the rate appropriate to a married woman from the 17th day of January 1984 and the appropriate rate of pay-related benefit from some weeks later.

By virtue of the provisions of Section 34 of the Social Welfare (Consolidation) Act, 1981 she was entitled to unemployment benefit for a period of 312 days. It appears also that the payment of pay-related benefit automatically ceases on the cessation of a persons entitlement to unemployment benefit.

By virtue of the provisions of this Section, a person who is over the age of 18 years and is not a married woman (other than a married woman living apart from and unable to obtain any financial assistance from her husband or entitled to an increase of benefit for a child or husband) is entitled to such benefit for the period of 390 days.

In or about the beginning of January 1985, the Applicant was informed by an official in the Employment Exchange in North Cumberland Street in the City of Dublin that her entitlement to receive unemployment benefit and pay-related benefit would cease as of the 17th day of January 1985.

On the 4th day of February 1985, the Applicant applied for and obtained in the High Court an order that an order of certiorari do issue directed to the Minister for Social Welfare to send before the Court for the purpose of being quashed the decisions to terminate the payment of unemployment benefit and pay-related benefit on the grounds that such decisions were contrary to and infringed the Applicant's rights under Article 4 of the EEC Directive No. 79/7/EEC unless cause shown to the contrary.

The Respondent, the Minister for Social Welfare, purported to show cause by way of the affidavit of Michael Buckley filed on the 19th day of March 1985. The Council Directive referred to was made on the 19th day of December 1978 and was directed to the progressive implementation of the principle of equal treatment for men and women in matters of social security.

Article 4 of the said Directive provided that:

"1. The principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

the scope of the schemes and conditions of access thereto, the obligation to contribute and the calculation of contributions,

the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

2. The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity."

Article 5 of the said Directive provided that:

"Member States shall take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished."

Article 9 provided that:-

"Within seven days of notification of this Directive, Member States shall forward all information necessary to the Commission to enable it to draw up a report on the application of this Directive for submission to the Council and to propose measures as may be required for the implementation of the principle of equal treatment."

In accordance with the provisions of Article 177 of the Treaty establishing the European Economic Community, I referred to the Court of Justice of the European Communities the following questions:

1. Do the provisions of Directive 79/7/EEC, and in particular Article 4 thereof, have direct effect in the Republic of Ireland as and from the 23rd day of December 1984 so as to confer enforceable Community rights upon married women such as the Prosecutrix in the circumstances of the present case?

2. If the answer to question 1 is in the affirmative, does this mean that national provisions such as those contained in Chapters 4 and 6 of Part 2 of the Social Welfare (Consolidation) Act, 1981 as amended, are enactable and that the Prosecutrix as a married woman living in a Member State which had failed to repeal or adapt such provisions is entitled to equal treatment in relation to the relevant Social Welfare benefits as and from the 23rd day of December 1984 and has rights of action in that regard which are enforceable by her against such Member States?

As appears from the judgment of the Court of Justice of the European Communities delivered on the 24th day of March 1987, the answer to the first question was that where Council Directives 79/7/EEC of 19 December 1978 has not been implemented Article 4(1) of the Directive, which prohibits all discrimination on grounds of sex in matters of social security, could be relied upon as from 23rd December 1984 in order to preclude the application of any national provision inconsistent with it.

With regard to the second question submitted to it, the Court ruled that:

"In the absence of measures implementing Article 4(1) of the Directive, women are entitled to have the same rules applied to them as are applied to men who are in the same situation, since, where the Directive has not been implemented, those Rules remain the only valid point of reference."

Consequently, it was quite clear as a result of these rulings that the provisions of Section 34 of the Social Welfare (Consolidation) Act, 1981, which limited the payment of unemployment benefit and pay-related benefit to the Applicant to a period of 312 days was contrary to the principle of equal treatment for men and women in matters of social security, was inconsistent with the terms of the aforesaid Directive, and that the aforesaid Directive could be relied on by the Applicant to preclude the application of any national provision inconsistent with it.

The application for certiorari made on the 4th day of February 1985 was made on the basis that the Applicant was entitled to be paid for the same period as a married man, single man and single woman and at the same rate from the 23rd day of December 1984.

In anticipation of the judgment due to be delivered by the Court of Justice of the European Communities, the Applicant on the 23rd day of February 1987 applied for and was granted leave to apply for the following reliefs, namely,

1. A declaration that by reason of the provisions of EEC Directive 79/7/EEC, and in particular Article 4 thereof, the Applicant has since the 23rd day of December 1984 been entitled to equal treatment to a married man in similar circumstances in regard to the payment of Social Welfare benefits to her by the first-named Respondent.

2. A declaration that the first-named Respondent has been guilty of discriminatory treatment towards the Applicant contrary to EEC Directive 79/7/EEC, and in particular Article 4 thereof, in regard to the payment of Social Welfare benefits to the Applicant since the 23rd day of December 1984.

3. A declaration that the Applicant was and is entitled to the payment of Social Welfare benefits and allowances to her as follows:

(1) Unemployment benefit from the 23rd December 1984 until the 18th April 1985 at the appropriate rate then applicable to a married man in similar circumstances.

(2) An increase on the appropriate personal rate of unemployment benefit in respect of an adult dependant and two child dependants at the appropriate rate then applicable for the period 23rd December 1984 to the 18th April 1985.

(3) Pay-related benefit from the 17th January 1985 to 18th April 1985 at the appropriate rate then applicable, that is, the sum of £13.54 per week.

(4) Unemployment assistance from 18th April until 20th June 1985 at the appropriate personal rate then applicable to a married man in similar circumstances.

(5) An increase on the appropriate personal rate of unemployment assistance in respect of an adult dependant and two child dependants at the appropriate rate then applicable for period 18th April to 20th June 1985.

(6) Unemployment benefit from 21st January 1986 until 20th November 1986 at the appropriate rate applicable to a married man in similar circumstances.

(7) An increase on the appropriate personal rate of unemployment benefit in respect of an adult dependant and two child dependants at the appropriate rate then applicable for the period 21st January 1986 to 20th November 1986.

(8) Unemployment benefit from 20th November 1986 until 22nd April 1987 or such date as the Applicant may take up employment at the appropriate rate applicable to a married man in similar circumstances.

(9) An increase on the appropriate personal rate of unemployment benefit in respect of an adult dependant and two child dependants at the appropriate full rate then applicable, together with a further payment of £10 per week for the period 20th November 1986 to 22nd April 1987 or such date as the Applicant may take up employment.

(10) An order of mandamus directing the first-named Respondent to pay to the Applicant her due entitlements in regard to Social Welfare benefits and allowances in accordance with the terms of the declaration sought at sub- paragraph 3 hereof.

(11) Damages for breach of the Applicant's right to equal treatment pursuant to the provisions of Directive 79/7/EEC and in particular Article 4 thereof, in respect of the payment of Social Welfare benefits to her.

The grounds upon which such relief sought are set forth in Schedule B attached to the order of this Court made on the 23rd day of February 1987.

The Respondents statement of opposition was delivered on the 11th day of May 1987 and the averments of fact contained therein were verified by two affidavits of John Hynes sworn on the 8th day of May 1987.

The Applicant's claim in respect of the payment of Social Welfare benefits and allowances can be divided into a number of headings as follows:

(1) Unemployment benefit at the rate then applicable to a married man in similar circumstances.

(a) 23rd day of December 1984 to the 18th day of April 1985.

(b) 21st January 1986 to the 20th day of November11986.

(2) Pay-related benefit From the 17th day of January 1985 to the 18th day of

April 1985.

(3) An increase in the appropriate rate of unemployment benefit in respect of an adult dependant and two children at the appropriate rate then applicable for the following periods :

23rd day of December 1984 to the 18th day of April 1985 21st day of January 1986 to the 20th day of November 1986 20th day of November 1986 to the 22nd day of April 1987

(4) Unemployment assistance from the 18th day of April 1985 until the 20th day of June 1985 at the appropriate rate then applicable to a married man in similar circumstances together with an increase thereof in respect of an adult dependent and two children for this period.

(5) Payment of £10 per week from the 20th day of November 1986 to the 22nd day of April 1987.

With regard to the Applicant's claim for unemployment benefit in respect of the period from the 23rd day of December 1984 to the 18th day of April 1985, it is quite clear, having regard to the rulings of the Courts of Justice of the European Communities that the Applicant was entitled to be paid unemployment benefit at the same rate as a married man and for the same period and in addition was entitled to be paid pay-related benefit for the period from the 17th day of January 1985 to the 18th day of April 1985.

With regard to the Applicant's claim in respect of unemployment benefit for the period from the 21st day of January 1986 to the 22nd day of April 1987 it appears from Mr. Hynes1 affidavit that the Applicant applied for unemployment benefit on the 21st day of January 1986 but was refused on the 18th day of February 1986 and on appeal on the 12th day of March 1986 on the grounds that she was not available for work, which availability is one of the conditions necessary to qualify for unemployment benefit.

She reapplied on the 3rd day of April 1986 and her application was then allowed. She was paid benefit at the rate appropriate to married women between the 7th day of April 1986 and the 14th day of May 1986.

The Social Welfare Act, 1985 was enacted by the Oireachtas on the 16th day of July 1985.

As appears in the headnote thereof, this Act was to provide for equal treatment for men and women in matters of social welfare and for that purpose to amend the Social Welfare Act, 1981 to 1985.

By virtue of the provisions of Statutory Instrument 173 of 1986 the provisions of Section 6 of the said Act came into operation.

This equalised the period of entitlement to unemployment benefit and from the 15th day of May 1986 the Applicant has, when entitled to unemployment benefit, been paid at the same personal rate as a married man and there has been no discrimination against her since that date in regard to payments of unemployment benefit.

She was, however, entitled to be paid at the same personal rat as a married man for the period from the 7th day of April 1986 until the 14th day of May 1986.

In addition, the Applicant claims to be entitled to an increase in the appropriate rate of unemployment benefit in respect of an adult dependant and two children for a number of different periods. The first is for the period 23rd day of December 1984 to the 18th date of April 1985.

Section 2 of the Social Welfare (Consolidation) Act, 1981 provides, inter alia, that:

"Adult dependant" means, in relation to any person

(a) a wife who is living with or being wholly or mainly maintained by her husband, or

(b) a husband who is incapable of self-support by reason of some physical or mental infirmity and who is being wholly or mainly maintained by his wife."

Section 32 of this Act provides that:

"(1) The weekly rate of unemployment benefit shall be increased by the amounts set out in Column (3) of Part 1 of the Second Schedule for any period during which the beneficiary has an adult depend subject to the restriction that a beneficiary shall not be entitled for the same period to an increase of benefit under this sub-Section in respect of more than one person.

(2) The weekly rate of unemployment benefit shall be increased by the amounts set out in Column (4) of Part 1 of the Second Schedule in respect of a qualified child or each of two qualified children who normally resides or reside with a beneficiary and, in addition, where there are more than two such children, by the amount set out in Column (5) of that Part in respect of each such child in excess of two."

The Applicant's husband resides with her and their two children, who are 'qualified children within the meaning of the Act. At all relevant times the husband has been engaged in gainful employment and is not dependant on his wife in the financial sense.

It is, however, submitted on the Applicant's behalf that she is being discriminated against because in similar circumstances, if her husband were unemployed and entitled to Unemployment Benefit, he would be entitled to the increases therein provided for by Section 32(1) and (2) of the Social Welfare (Consolidation) Act, 1981.

It is clear from the definition of 'adult dependant1 contained in Section 2(1) (a) of the Social Welfare (Consolidation) Act, 1981 that a wife, who is living with her husband, or is wholly or mainly maintained by him is, irrespective of her income, regarded as a dependant of her husband whereas by virtue of the definition of adult dependant contained in Section 2(l)(b) of the said Act a husband is only regarded as a dependant of a wife if he "is incapable of self-support by reason of some physical or mental infirmity and is being wholly or mainly maintained by his wife."

From this it is quite clear that a husband who has a wife living with him and two qualified children residing with him, would be entitled in the aforesaid increases in the unemployment benefit payable to him whereas, in similar circumstances a wife would not.

The entitlement of a husband to the increased benefit provided in respect of qualified children by Section 32(2) of the Social Welfare consolidation) Act, 1981 is not, however, unqualified.

Article 5 of the Social Welfare (Normal Residence) Regulations, 1974 statutory Instrument No. 211 of 1974) provides that:

"A qualified child who is resident with more than one of the following persons:

his father,

his step-father,

his mother,

his step-mother,

shall be regarded as normally residing with the person first so mentioned and with no other person, provided that, where the child's mother or step-mother is wholly or mainly maintaining the child and the child's father or step-father is incapable of self-support by reason of some physical or mental infirmity, the child should be regarded as normally residing with his mother or step-mother as the case may be and with no other person."

I have carefully considered the terms of these Regulations and am very satisfied that they are in any way discriminatory on the grounds of ….. inconsistent with the provisions of Article 4(1) of the Council ….. 79/7/EEC of 19 December 1978. They are a reasonable attempt …… with the question of entitlement to the increase in unemployment benefit in respect of "qualified children" provided by Section 32(2) of (Consolidation) the Social Welfare (Consolidation) Act, 1981 so as to prevent the anomalous situation arising of two people being entitled to the increased benefit in respect of "qualified children".

And the provisions in the Social Welfare (Consolidation) Act, 1981 which deprive the Applicant of the entitlement to the increase in unemployment benefit granted by virtue of the provisions of Section 32(1) of the Act are, however, in my opinion inconsistent with the provisions of Article 4(1) of the said Council Directive and the Applicant is entitled to rely on the Directive to preclude the application of the said Act to her claim to entitlement to the said increased benefit.

A similar situation arises with regard to the period from the 7th day of April 1986 until the 20th day of November 1986.

While the Applicant was from the 15th day of May 1986 paid unemployment benefit at the same personal rate as a married man, she was not paid the increased benefit to which a married man in similar circumstances would have been entitled.

By virtue of the provisions of Section 3 of the Social Welfare (No.2) Act, 1985, which was enacted on the 16th day of July 1985, the definition of "adult dependant" as contained in Section 2 of the Social Welfare (Consolidation) Act, 1981 was amended as follows :

"Adult dependant means in relation to any person:

(a) a spouse who is wholly or mainly maintained by that person but does not include

(i) a spouse in employment,

(ii) a spouse who is self-employed, or

(iii) a spouse who is entitled to, or is in receipt of, any pension, benefit, assistance or allowance (other than supplementary welfare allowance) under Part 2 or 3 of this Act or disabled persons maintenance allowance under Section 69 of the Health Act, 1970."

Section 4 of the Social Welfare (No. 2) Act, 1985 provided that:

"(1) Subject to sub-Section 2, any increase of benefit or pension, as the case may be, payable pursuant to Sections 21, 32, 44, 55, 81, 86 or 91 of the principal Act in respect of a qualified child who normally resides with a beneficiary or pensioner and with a spouse of a beneficiary or pensioner shall be payable at the rate of one-half of the appropriate amount in any case where the spouse of the beneficiary or pensioner is not an adult dependent, and the said Sections 21, 32, 44, 55, 81, 86 and 91 shall be construed and have effect accordingly.

(2) The provisions of sub-Section (1) shall not apply in any case where a spouse of a beneficiary or pensioner is living apart from the beneficiary or pensioner, as the case may be, and is not making a financial contribution to the

maintenance of the qualified child."

By virtue of the provisions of the Social Welfare (Preservation of Rights) Regulations, 1986 the operative date for the purpose of payment of retirement pension, invalidity pension and unemployment benefit was the 20th day of November 1986.

Since the 20th day of November 1986, the Applicant became entitled to half the increase in respect of two child dependants and her payments were increased accordingly at that time on the basis of a shared dependency of her children between herself and her husband.

Since that date no discrimination has applied against the Plaintiff based on her sex or on her marital status.

The Applicant further claims that she is entitled to payment at the rate of £10 per week from the 20th day of November 1986.

In her affidavit she states at Paragraph 8(k):

"As and from 20th November 1986 I have not received any other increase in respect of my personal weekly rate of unemployment benefit apart from an increase in respect of half the appropriate rate for two dependent children. A married man in similar circumstances would receive a further increase in the sum of £10 per week; the right to receive such said increase would continue until his right to receive unemployment benefit is exhausted or for a period of one year from the 20th November 1986, whichever is the shorter."

This payment of £10 was intended to provide compensation for the loss sustained by the application of the provisions of the Social Welfare (No. 2) Act, 1985 and in particular for the loss of the adult dependant increase in unemployment benefit.

By virtue of the terms of the Social Welfare (Adult Dependant) Regulations, 1986 (Statutory Instrument No. 369 of 1986) the definition of "adult dependant" as set forth in Section 3 of the Social Welfare (No. 2) Act, 1985 was extended and provided that the following shall be adult depend ants for the purpose of that Act

(1) A spouse who is in employment or is self-employed and whose weekly income calculated or estimated in accordance with Article 5 of these Regulations does not exceed £50.

(2) A spouse who

(a) is not in employment or self-employed, or

being in employment or self-employed has a weekly income calculated or estimated in accordance with Article 5 of these Regulations which does not exceed £50.

and who has an entitlement to or is in receipt of disablement benefit under Section 43 of the Act, death benefit under [Section 52 of the Act, Ophans (Contributory) Allowance, Orphans (Non-Contributory) Pension and to no other pension benefit assistance or allowance (other than supplementary welfare allowance) under Parts 2 or 3 of the Act or disabled persons maintenance allowance under Section 69 of the Health Act, 1970 (No. 1 of 1970).

As the Applicant has no "adult dependant" within the foregoing definition, she is not entitled to the payment of £10 per week.

Her husband would not be entitled to the payment of £10 per week unless he had a spouse who fitted into the category of "adult dependant" as defined in the aforesaid Act or Regulations.

Consequently, there is no discrimination against the Applicant on the grounds of sex or marital status in the failure to pay her the said sum of £10 per week.

As the Applicant has no personal entitlement to such payment, she has no locus standi to claim relief in respect of such payment on the grounds that the conditions attached to such payment are discriminatory on the grounds of sex or marital status and contrary to the provisions of the aforesaid EEC directive and in particular Article 4 thereof.

The Applicant further claims that she is entitled to unemployment assistance from the 18th day of April 1985 until the 20th day of January 1986 at the appropriate rate then applicable to a married man in similar circumstances together with an increase thereof in respect of an adult dependant and two children for this period. It is conceded by her that she did not apply for unemployment assistance during the period.

In her Affidavit she states that:-

"It was not open to me to apply for and to obtain unemployment assistance, after my right to receive unemployment benefit had been exhausted. A married man, in similar circumstances, would have been entitled to apply for and to receive unemployment assistance at the appropriate rate once his entitlement to receive unemployment benefit had ceased after 390 days from the date of initial payment. The payment of unemployment assistance to him would have included an increase for an adult dependant and two child dependants."

The ground upon which this relief is sought is set forth at 2(vi) of the Statement delivered in accordance with the rules as follows :-

"The first named Respondent failed to make provision for the Applicant to apply for and to obtain, subject to the means test then applicable, unemployment assistance at the appropriate rate then applicable, together with an increase on the personal weekly rate payable in respect of an adult dependant and two child dependants for the period from the 18th day of April 1985 to the 20th day of June 1985 which said allowance and increases thereon would have been payable to the married man in similar circumstances."

The entitlement to and payment of unemployment assistance at the relevant period was governed by the provisions of Chapter 2 of the Social Welfare (Consolidation) Act, 1981. It is clear from the provisions of such chapter that in order to become entitled to the receipt of unemployment assistance a person must, in the first instance, apply for and obtain "a qualification certificate" (vide Section " 136 (1) and (2)); that in order to obtain such a certificate he must fulfil the conditions set forth in Section 136 (3) of the Act; that each such certificate must contain a statement of the weekly rate corresponding to the annual rate calculated in accordance with the said Chapter 2 of the means of the person to whom such certificate relates Section 136 (4)); that he must apply in the prescribed manner unemployment assistance (vide Section 137 (1)) and must satisfy the deciding officer that he complies with the statutory conditions forth in Section 138 (vide Section 137 (2)).

Upon the person applying for unemployment assistance satisfying the deciding officer he became entitled to receive payments at such times, in such manner and at such rate as was appointed under the said chapter of the said Act.

Section 139 of the said Act dealt with the rates of assistance and Section 140 deal with the effect of means on the rates payment.

Section 140 provides that:

"(1) Whenever a person is entitled under this chapter to receive unemployment assistance, such assistance shall be given to him in the form of a money payment at which ever of the following rates is applicable

(a) If he has no means, at the scheduled rate, and

(b) If he has means at a rate equal to the scheduled rate reduced by 5p per week for every 5p or part of 5p of his means."

Section 146 sets forth in detail the things to be taken into account in determining the means of an applicant for unemployment assistance and Section 147 provides an alternative method for calculating such means.

It is clear that the conditions to be fulfilled by a person applying for "a qualification certificate" are discriminatory against married women because Section 136 (3) of the Social Welfare (Consolidation) Act, 1981 provides a married woman must in addition to the conditions set forth at (a), (b) and (c) (1) and (2) fulfil the conditions set forth at (d) which reads:-

"In the case of a married woman either

(1) that her husband is a dependant of her,

(2) that neither she nor her husband is a dependant of the other and she has one or more dependants"

A husband, by reason of the definition of "adult dependant" contained in Section 2 of the said Act, does not have to fulfil either of these two conditions. The Applicant's husband is not and at the relevant period was not dependant of her and consequently she did not fulfil the conditions necessary to be fulfilled to obtain "a qualification certificate and consequently was precluded from applying for unemployment assistance as only holders of such "qualification certificate" were entitled to apply for unemployment assistance (vide Section 137(1)).

I have set forth as briefly as possible the nature of the Applicant's claims herein and the basis therefore. I have held that she is not entitled to the claim for the payment of £10 per week from the 20th day of November 1986 or to any relief in respect of any claim for additional payments of unemployment assistance after that date or to any claim to an increase in unemployment benefit in respect of "qualified children" as, in my view, the terms of the Social Welfare (Normal Residence) Regulations 1974 (S.I. No. 211 of 1974) are not discriminatory on the grounds of sex and are not inconsistent with the provisions of Article 4(1) of the Council Directive.

I have now to consider what relief she is entitled to in respect of her claim to

(1) Be paid unemployment benefit at the rate then applicable to a married man in similar circumstances for the periods

(a) 23rd December 1984 to the 18th day of April 1985, and

(b) 7th day of April 1986 to the 14th day of May 1986.

(2) An increase in the appropriate rate of unemployment benefit in respect of an adult dependant at the appropriate rate for the following periods

(a) 23rd December 1984 to the 18th day of April 1985,

(b) 7th day of April 1985 to the 20th day of November 1986.

(3) Unemployment assistance from the 18th day of April 1985 until the 20th day of June 1985 at the appropriate rate then applicable to a married man in similar circumstances together with an increase thereof in respect of an adult dependant for this period.

The Defendants submit that she is not entitled to any reliefs on the grounds that:-

The Applicant has been guilty of undue delay in bringing these proceedings and making such claims;

(2) At no stage prior to the application for leave to seek Judicial Review did the Applicant make any claim for an increase of unemployment benefit in respect of an adult dependant and two qualified children and by reason of such failure the Respondents were denied the opportunity of determining her eligibility for same;

(3) The Applicant did not apply for unemployment assistance in respect of the period the 18th day of April 1985 until the 20th day of June 1985 and that by reason of such failure, the Respondent was not afforded the opportunity to assess whether or not she was entitled to same in accordance with the provisions of Chapter 2 of the Social Welfare (Consolidation) Act, 1981;

(4) By reason of such delay and failures to apply for the benefits claimed, the Respondent has been prejudiced in being deprived of the opportunity to determine the eligibility and entitlement of the Applicant to such benefits and to make financial provision therefore, which financial provision could, if the Applicant's claims are accepted in full and applied to all potential claimants since the 22nd day of December 1984 with retrospective effect, amount to the sum of 200 million pounds.

(5) The Applicant did not comply with the provisions of the Social Welfare (Consolidation) Act, 1981 and the various Regulations made thereunder by applying in the prescribed manner for the benefits she claims and that by reason of such failure she is debarred from claiming them at this stage.

(6) She is not entitled to the reliefs claimed or to apply for same because her only remedy under the Social Welfare (Consolidation) Act, 1981 is that provided by Part (VIII) thereof.

I do not accept that there was any undue delay on the part of the Applicant in bringing these proceedings. Her unemployment benefit ceased in January 1985 and on the 4th day of February 1985 she made her original application as set forth in the earlier part of this judgment and the questions raised therein were, at the request of the Respondent, referred to the Court of Justice of the European Communities for a preliminary ruling, which ruling was given on the 24th day of March 1987.

It would have been reasonable for the Applicant to await this ruling before bringing these proceedings but in anticipation of the ruling, these proceedings were instituted by the application to the Court made on the 23rd day of February 1987, as hereinbefore set forth.

Neither do I accept that she is precluded from claiming relief by reason of the fact that she had not previously applied in the "prescribed manner" as required by the Regulations made pursuant to the provisions of the Social Welfare (Consolidation) Act, 1981 for an increase in unemployment benefit or unemployment assistance for the relevant periods or because she did not avail of the appeals procedure set forth in Part (VIII) of the Social Welfare (Consolidation; Act, 1981 because under the existing legislation she would not have been entitled thereto and such application would have been futile.

Neither am I satisfied that the Respondent was in any way prejudiced by the fact that he has not been afforded the opportunity to. consider the Applicant's eligibility to be paid:

(1) Unemployment benefit at the rate then applicable to a married man in similar circumstances for the periods

(a) 23rd December 1984 to 18th day of April 1985, and

(b) 7th day of April 1986 to the 14th day of May 1986.

(2) An increase in the appropriate rate of unemployment benefit in respect of an adult dependant at the appropriate rate for the following periods

(a) 23rd day of December 1984 to the 18th day of April 1985,

(b) 7th day of April 1985 to the 20th day of November 1986.

It has already been decided that she is entitled to unemployment benefit in respect of the aforesaid periods and the appropriate rates are provided for by statute and readily ascertainable.

Consequently, I am satisfied that the Applicant is entitled to a declaration that

1. She is entitled to be paid unemployment benefit at the rate then applicable to a married man for the periods

(a) 23rd day of December 1984 to the 18th day of April 1985, and

(b) 7th day of April 1986 to the 14th day of May 1986.

With regard to the Applicant's claim for unemployment assistance from the 18th day of April 1985 until the 20th day of June 1985, I have given in certain cases to transactions carried out under the void statute.

A good example, from a different juridical metier of the subjugation of abstract principle and the symmetry of logic to the compulsion of economic or practical demands of society is to be found in the judgment of the EEC Court in Defrenne v. Sabena. Miss Defrenne was an air hostess employed by the Belgian airline, Sabena. She unsuccessfully brought proceedings in Belgium claiming compensation for the loss she had suffered when she terminated her duties with Sabena in terms of salary, allowance on termination of service, and pension - as a result of the fact that air hostesses and male members of the air crew performing identical duties did not receive equal pay. On a reference through the EEC Court under Article 177 of the Treaty of Rome, it was held, inter alia, that in the events that happened, Article 119 had introduced directly into the national law of each Member State the principle that men and women should receive equal pay for equal work, that the Belgian law which denied Miss Defrenne that right was made invalid from the date when Article 119 became directly applicable in Belgium as between the State and individual persons, and that accordingly Miss Defrenne was entitled to succeed in her claim. The Court, however, proceeded to declare that, except as regards those workers who had already brought legal proceedings or made an equivalent claim, the direct effect of Article 119 could not be relied on in order to support claims concerning pay periods to the date of its judgment."

With regard to the Applicant's claim to be entitled to be paid an increase in the appropriate rate of unemployment benefit in respect of an adult dependant at the appropriate rate for the following periods

(a) 23rd December 1984 to the 18th day of April 1985,

(b) 7th April 1985 to the 20th day of November 1986, I have already held that the provisions of the Social Welfare (Consolidation) Act, 1981 which deprives her of this increase is inconsistent with the provisions of Article 4(1) of the Council Directive. It is clear from this judgment that, in deciding whether the Applicant is entitled to any relief in respect of this claim, I am entitled to have regard to what Mr. Justice Henchy referred to as 'the equity of the case.

The equity of this case requires that she be denied any claim for relief under this heading. It is conceded on behalf of the Applicant that her husband was at all relevant periods not dependent on her and that he was engaged in full-time employment.

In the circumstances, it would be unjust and inequitable to pay to the Applicant an adult dependant increase when the adult concerned her husband was not financially dependent on her and it would be unjust and inequitable to require the people of Ireland to pay her such increase. Consequently, I refuse the Applicant any relief in respect of this particular claim.

Though Council Directive No. 79/7/EEC of 19 December 1978 had direct effect in this State as on and from the 23rd day of December 1984, it cannot be relied on to support claims for social security concerning periods prior to the judgment given and rulings made on the 24th day of March 1987 by the Court of Justice of the European Communities except as regards those people who have brought legal proceedings or made an equivalent claim prior to that date.

THE HIGH COURT

JUDICIAL REVIEW

No. 61 of 1987

BETWEEN:

ANN COTTER

Applicant

and

THE MINISTER FOR SOCIAL WELFARE

AND THE ATTORNEY GENERAL

Defendants