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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McCormack -v- Minister for Social Protection & ors [2014] IEHC 489 (30 October 2014)
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Cite as: [2014] IEHC 489
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Judgment Title: McCormack -v- Minister for Social Protection & ors Neutral Citation: [2014] IEHC 489 High Court Record Number: 2013 900 JR Date of Delivery: 30/10/2014 Court: High Court Composition of Court: Judgment by: Baker J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 489 THE HIGH COURT JUDICIAL REVIEW [2013 No. 900 J.R.] BETWEEN KEVIN MCCORMACK APPLICANT AND
MINISTER FOR SOCIAL PROTECTION, CHIEF APPEALS OFFICER, IRELAND AND ATTORNEY GENERAL RESPONDENTS JUDGMENT of Ms. Justice Baker delivered on 30th day of October, 2014 1. The applicant is a married man who separated from his wife in 2011 and entered into a formal separation agreement, the relevant terms of which I will outline below. The couple have four children ages, three, six, eight and sixteen. During the marriage the couple had a privately owned family home in the west of Ireland, and following the breakdown of the marriage, and as part of the separation agreement, the couple agreed that this premises would be transferred into the sole name of the wife on the basis therein set out and in satisfaction of certain claims of the wife to maintenance for herself and the children, and for their respective accommodation needs. 2. Following the separation, the applicant moved back to Dublin where he has lived with his parents and other family members from time to time. He is out of work and has been so for almost the entire period since he returned to Dublin. 3. In May 2012, the applicant applied to and was assessed as eligible by Fingal County Council for social housing for himself and his four children. It is not doubted that the supply of houses in Fingal is such that it is not likely that the applicant will be allocated a suitable home for a number of years. 4. On 5th July, 2012, the applicant applied to the Department of Social Protection for rent supplement, a supplementary welfare allowance within the meaning of the Social Welfare Consolidation Act 2005 ("the Act of 2005"). In his application he sought rent allowance at the maximum amount payable for a one parent family with three children. On 16th August, 2012, the designated officer granted the applicant the rent allowance payable to a single person , but not in the amount sought by him, the decision expressly being based on the fact that the rent sought of €900 was in excess of the €475 monthly limit for single people. 5. The applicant appealed and the appeals officer gave her decision on 13th December, 2012 disallowing the application. The stated reason was that the accommodation needs of the children "were already met in the home of their mother". 6. Following on the unsuccessful appeal under this statutory scheme, the applicant obtained the assistance of the Northside Community Law Centre and application was made on his behalf by his solicitor to the Chief Appeals Officer, the second named respondent in these proceedings, requesting her to carry out a review pursuant to s. 318 of the Act of 2005, of the decision of 13th December, 2012. 7. On 13th November, 2013, the Chief Appeals Officer gave a reasoned written decision, in which she stated she found no basis for reviewing the decision of the Appeals Officer of 13th December, 2012. The decision states that as the deciding officer and the appeals officer had considered that:
(a) The decision maker erred in law as to the proper test to be applied in considering the application of Mr. McCormack. This is a classic ground of review and the challenge is that the deciding body failed to have regard to any relevant considerations, and misconstrued the test to be applied. (b) Whether the enabling legislation properly vindicates the constitutional and Convention rights of the applicant and his children and whether in the circumstances the legislation is unconstitutional. The parties have agreed an issue paper and have identified the first issue as
9. Chapter 9 of the Act of 2005, sets out a statutory scheme for the payment of supplementary welfare allowances which has been described by the respondents as a form of "safety net" within the overall social welfare system in that it provides assistance to eligible persons in the State whose means are insufficient to meet their needs and/or those of their dependents. The general provision is for a weekly allowance, and can be supplemented with an additional amount, including for the present purposes, an amount known as a rent supplement to cover the costs of private rented accommodation. 10. Section 189 of the Act of 2005 establishes the qualifying requirements for supplementary allowances:
(a) where-
(ii) both civil partners of a civil partnership, or (iii) both cohabitants, are members of the same household, their needs and means shall be aggregated and shall be regarded as the needs and means of the claimant; (c) where the needs of any person are taken into account in determining the entitlement of any other person to supplementary welfare allowance, only that other person shall be entitled to an allowance. " Rent supplement
16. Section 198(3E) is the empowering provision and enables the Minister to fix the maximum amounts of rent supplement payable :-
19. The Regulations were amended by S.I. 215 of 2013, which came into operation on 17th June, 2013, and were the relevant Regulations fixing the maximum amount of rent supplement payable at the time of the application to the applicant. 20. The primary legislation identified the matters by which the Minister was constrained in making the Regulations and the matters that would constitute the qualifying parameters were identified as two matters only: the location of the premises and the family circumstances of an applicant. The legislation did not allow for any discretion in the amounts awarded to an individual applicant and required that the amounts be fixed by reference to two matters only. The reasons for this are fairly obvious. The location of premises is a significant determiner in the Irish property market of market rent, and there is a marked difference between rental values in Dublin and the rest of the country, and indeed in parts of Dublin. Equally obvious is the fact that the family circumstances or living arrangements of an applicant for rent allowance must be taken into account, and this means that the applicant for rent allowance must identify for the purposes of an application whether the applicant is a single person with or without children, a married or co-habiting couple or a couple in a civil partnership etc. The expression "family circumstances" is a broad expression to identify in essence the living conditions of an individual applicant. 21. It seems to me that it is clear from the provisions of the supplementary welfare code itself and the express requirements in s. 196 that the calculation takes account of the living arrangements of applicants and that cohabiting couples are regarded as having aggregated means and needs. Equally the needs of a person who has qualified children are taken to include the needs of that child or children. 22. The respondents accept that the applicant is entitled to rent supplement under the supplementary welfare allowance scheme. What is in issue is whether the first respondent applied the correct test in the characterisation of the applicant for the purposes of assessing the maximum amount of rent supplement to which he is entitled. Put simply, the question is whether the applicant was properly characterised as a single man, or whether he is to be treated as the parent of four qualified children. The overall scheme: the trigger of entitlement The categories in the Schedules 25. The applicant claims that on a true application of the Regulations and the schedules attached to the Regulations he falls within category 8, i.e. he is a one parent family with three children. The respondent says that the applicant falls within the category identified in column 4, i.e. he is a single person. 26. The respondent makes an argument, which I do not accept, that as Mr. McCormack has four children he cannot qualify under category 8 as he is, at the height of the case put by the applicant, a single person with four children. I do not accept this analysis as otherwise the Regulations would be interpreted as meaning that no family with four children could qualify within category 8. There being no category within the Regulations which identifies a single person with more than three children I believe that in order that the Regulations not produce an absurd result that the expression "single person with three children" must be taken to mean a "single person with three or more children". A single person? The matters actually considered by the second respondent 29. The applicant says that the use of the expression "having regard to" in the Regulations requires the deciding officer, or on appeal the appeals officer, to have regard to the family circumstances of an applicant. I do not accept that that obligation arises from the Regulations, and I accept the argument of the respondent that it is the Minister who is mandated to have regard to family circumstances in the context of his power contained in section 198(3E). 30. But this is not to say that the deciding officer or the appeals officer may ignore or fail to properly consider the individual circumstances, family circumstances or living circumstances, of an applicant and I return below to the precise meaning of the expression in the context of an application. 31. The applicant claims that the second respondent fell into error in failing to have regard to Mr. McCormack's family circumstances and argued further that the family circumstances of Mr. McCormack included that he had the benefit of a joint custody order in respect of his children and that he was entitled to and did in fact enjoy access to them. Qualified children 33. Counsel for the applicant argues that the definition of "qualified child" in s. 188 is not relevant to the application for rent supplement. The applicant says that the provisions of s. 188 and the definition in that section do not govern an application for rent supplement and the entire scheme for the payment of rent supplement is found in s. 198 and the following sections. She argues that while the enabling provisions with regard to rent supplement are found in Chapter 9, Part 3A of the Act of 2005, it is not necessary that an applicant for rent allowance be in receipt of supplementary welfare payments, and a person in employment can, in certain circumstances be entitled to a rent allowance. She says that the two forms of allowances or payments are separate and distinct and that the definition or statutory requirements for one do not apply to the other. 34. I cannot accept that argument. The definition in found Part 3 of the Act of 2005, which sets out the general scheme of social assistance, defined in s. 139(1) as including the payment of supplementary welfare allowances in s. 139(1)(i). The definition of qualified child in s. 188 is relevant to all parts of the general scheme of social assistance, of which rent allowance is a subset. Does Mr. McCormack have qualified children? The meaning of "dependent for support" 37. Counsel for the respondent argues that the word "support" in the legislation must mean financial support, and he says that this is so having regard to the fact that the legislation is one which enables payment of financial support, and that the interpretation contended for on behalf of the applicant fails to take into account that it is material support that the legislature must have intended to identify. He makes the point that a child might receive emotional or part time care or support from a grandparent and that a wide interpretation of the word "support" could mean that the grandparent could equally be able to argue an entitlement to a supplementary welfare payment in respect of the child. I do not accept that analogy because the legislation identifies the relationship as one of dependence on a beneficiary for support, and the legislature clearly intended to limit the class of persons which it would regard as dependent. To return to the analogy of the grandparent, if they were the sole carer of a child, or even one of two primary carers then arguably the grandparent could be in a position to argue a degree of dependency. 38. However, it seems to me that having regard to the structure and purpose of this legislation that the Oireachtas intended the definition of qualified child to be confined to a child who was dependent for financial or material support on the parent, and to interpret the legislative meaning as including emotional support is not correct. 39. However, the matter cannot be decided simply on this argument. It was decided by the appeals officer that the needs of the dependent children were adequately met by the living arrangements that they had with their mother in a town in the west of Ireland where they lived with her in privately owned accommodation. It seems to me that the decision maker was overly narrow in her understanding of the financial relationship between the applicant father and the children. The factual nexus: the separation agreement 41. The separation agreement undoubtedly made financial provision for the children, and Mr. McCormack as a result of so making financial provision for his children lost or ceded the benefit of his beneficial interest in his former family home, thereby making him dependent on private rented accommodation and rent supplement. 42. Mr. McCormack has in fact provided for his children in financial terms and by virtue of having transferred his beneficial interest to his spouse he has provided for their day to day or weekday accommodation needs. His children were dependent on him when he and his wife separated and the dependence both in terms of income or accommodation needs has continued, albeit these needs were met by Mr. McCormack by an "up front" capital payment. 43. The deciding officer and the appeals officer failed to have regard to the fact that Mr. McCormack had made provision for his children and that the children were and remain to that extent dependent financially on him. The fact that the financial dependence was not one which was met by weekly payments was not considered by the decision maker, and in my view the decision maker fell into a significant error which went to jurisdiction. I say this because, while I agree with the respondent that the dependency relationship is one which is linked to financial or material needs, those financial or material needs cannot properly be assessed unless all of the relevant circumstances of the individual applicant were considered. The simple decision to the effect that the accommodation needs of the children are already met at the home of their mother (the town in the west of Ireland), failed to have regard to the actual circumstances prevailing. 44. Thus it appears to me that the decision maker failed in this respect to have regard to the actual dependence that exists between the applicant and his four children, and that in so failing she incorrectly interpreted the legislation so as to exclude the children from the category of qualified children for the purpose of the application. 45. Further, it appears to me that a perhaps more important and relevant matter was not part of her deliberations. The legislation identifies a qualified child as one who is dependent for support on a parent or guardian, as the case may be. The class of relevant support is, I have already held, confined to financial support. But financial support includes more than monetary support, and the decision making body in my view took an overly narrow view of what might constitute financial support in the question asked. In particular it seems to me that it is arguable that the needs of the children may include their accommodation needs when they visit their father in Dublin, so his argument that he needs accommodation suitable for overnight, weekend and holiday visits is a real one in those circumstances. The children are qualified relative to Mr. McCormack if they are dependent on him, and it seems to me that his children are so dependent when they visit and stay with their father in a place which cannot be accessed easily or casually by them and where even remotely satisfactory contact require more than a fleeting visit. This is not to say that the needs of the children are to be assessed independently, and were I to look to this argument, as was urged by counsel for the applicant, I could be straying into a question which is not before me as the children are not party to this action. But the more narrowly defined needs of the children that I identify were or ought to have been before the deciding body in the context of the question whether they are qualified children, i.e. dependent on their father for support, and this question fell to be decided in the context of the broader accommodation need of the children while they are visiting their father. 46. Mr. McCormack has the benefit of a separation agreement by which he has joint custody, and liberal and flexible visitation rights with his children. The children cannot in that context be viewed as living primarily with one parent, nor can they be viewed as having what was described as a "primary carer" and such a view would fail utterly to have regard to the reality of a joint custody agreement made by the parents of these children, presumably in the context of what the parents viewed was in the best interests of their children, and what they perceived to be the best means by which the children could be supported in their relationship with each parent. The decision of the appeals officer and of the review incorrectly in my view applied an overly narrow test in coming to the decision that the "housing and other basic needs of the children are met by their primary carer", in that the actual needs of the children are more complex and have been assessed by their parents as involving joint custody, and ipso facto cannot be met in the circumstances in which they find themselves in one location only The test for judicial review
50. I adopt these formulations of the test that I must apply in assessing the lawfulness of the decision of the second respondent. Conclusion 52. I am satisfied that the decision making process was flawed as a matter of law in that the decision body took an erroneous view of the test it had to apply, and looked only to test the accommodation needs of the applicant himself without having any regard to the complexity of his family relationships, the needs of the children and their intrinsic interconnectedness with those of their father, the fact that the accommodation needs of the children when they are visiting their father in Dublin are an element in the test of whether they are qualified within the meaning of the legislation, and that if they have needs which are required to be satisfied by their father, his needs are to be accessed as including theirs. Further, the deciding body failed to have any regard to the fact that the accommodation and maintenance needs and claims of the children were met by a capitalized payment in the separation agreement. 53. This is not to say of course that a deciding body may yet come to the same conclusion on a reassessment of the application in the light of the factors identified in this judgment, but it seems to me that the deciding body took an overly narrow view of the test of the needs of the children for the purpose of the proper consideration of whether they are qualified within the meaning of the scheme. The Constitutional dimension 55. It is not necessary for me in those circumstances to look to the issue of the constitutionally of the legislative framework and the interpretation contended for by the applicant fully accommodates the constitutional dimension, and any argument under the Human Rights Act. 56. Accordingly it is appropriate that the decision be remitted to the respondents for further consideration.
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