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Cite as: [1998] 4 IR 321, [1998] IESC 1, [1999] 1 ILRM 5

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Lowth v. Minister for Social Welfare [1998] IESC 1; [1998] 4 IR 321; [1999] 1 ILRM 5 (14th July, 1998)

Supreme Court

Anthony Lowth and Angela Lowth and Mark Lowth (minors) suing by their father and next friend, Anthony Lowth

(Plaintiffs)

Minister for Social Welfare and the Attorney General

(Defendants)

No.136 of 1994

[14^th July 1998]

Status: Reported at [1999] 1 ILRM 5

Hamilton C.J.

1. This is an appeal brought by the above named Anthony Lowth on his own behalf and on behalf of his children, the minors named in the above entitled proceedings, against the judgment of Costello J, as he then was, delivered on 16 December 1993 and the order made in pursuance thereof, whereby the said plaintiffs’ claim was dismissed.

2. The facts relevant to, and the nature of, the claim made by the said first named plaintiff (hereinafter referred to as the appellant) on his own behalf and on behalf of his children, the minors herein, are set forth in the judgment of the learned trial judge as follows:

3. The first-named plaintiff was married on 22 December 1979. There were two children of his marriage, Angela born on 8 December 1980, and Mark, born on 9 February 1982. On 3 March 1984 he and his young children were deserted by his wife. The plaintiff at the time was employed in a building firm. He had no one to help him rear and care for his children and having tried to maintain his position in the firm on a part-time basis he was eventually forced to give it up so that he could look after his two young children. When they got older and developed to a stage when they did not require his full-time attention he attempted to find employment but unfortunately failed. He has, since he had to give up his employment, been dependent firstly on unemployment benefit, and later on unemployment assistance, augmented by social assistance payments. His claim in these proceedings arises from the fact that a deserted wife would in circumstances similar to his have been eligible to qualify for the receipt of what is called ‘deserted wife’s benefit’ under the provisions of the Social Welfare (Consolidation) Act 1981. His claim is:-

(a) that he and his children have been entitled to receive less income than a deserted wife and her children are entitled to,

(b) that he has thus been discriminated against by reason solely of his sex in contravention of Council Directive 79/7/EEC, and,

that the provision of the 1981 Act which makes provision for deserted wives but not for deserted husbands in similar situations is in breach of the plaintiff’s constitutional rights and is therefore unconstitutional.

4. While the Community law issue was originally in the forefront of the appellant’s claims, this claim was abandoned by counsel for the appellant in the light of a decision of the European Court of Justice and it was accepted that the legislation sought to be impugned did not contravene the provisions of Council Directive 79/7/EEC as originally claimed.

5. Consequently, the only issue which arose for decision in the High Court was the constitutional issue.

6. In the amended statement of claim delivered on behalf of the appellant, the appellant claimed, inter alia:

(d) A declaration that the provisions of the Social Welfare (Consolidation) Act 1981, Part II, Chapter 13, ss. 100 to 103 and Part III, Chapter 5, s. 195 (as amended) containing special provisions for deserted wives, are unconstitutional as they breach the plaintiffs’ constitutional rights pursuant to Article 40.3 of the Constitution and the guarantee of equal treatment pursuant to Council Directive 79/7/EEC.

(f) A declaration that the failure on the part of the first named defendant to treat the first named plaintiff in a similar manner to a deserted wife similarly situated amounts to a breach of the plaintiffs’ rights under Article 40.1 of the Constitution of Ireland.

(g) A declaration that the failure on the part of the first named defendant to treat the first named plaintiff in a similar manner to a deserted wife similarly situated amounts to a breach of the plaintiffs’ rights under Article 40.3 of the Constitution of Ireland.

(h) A declaration that the failure on the part of the first named defendant to treat the first named plaintiff in a similar manner to a deserted wife similarly situated amounts to a breach of the plaintiffs’ rights under Article 41 of the Constitution of Ireland.

Impugned provisions

7. As appears from the said claims, the impugned provisions of the Social Welfare code are ss. 100-103 of the Social Welfare (Consolidation) Act 1981 (hereinafter referred to as the Act of 1981) and s. 195 as amended.

S.100 of the Act of 1981 provides that:-

(1) Subject to this Act, deserted wife’s benefit shall be payable to a woman who-

(a) has been deserted by her husband,

(b) if she is less than 40 years of age, has at least one qualified child residing w with her,

(d) satisfies such other conditions as may he prescribed.

(2) The circumstances in which a woman is to be regarded for the purposes of this section as having been deserted by her husband shall be determined in accordance with regulations made under s. l95(4)(a).

(3) A child shall be a qualified child for the purposes of this section in relation to a woman if, on the assumption that her husband were dead, such child would be a qualified child in relation to her for the purposes of a widow’s (contributory) pension under this Part.

(4) For the purposes of this chapter ‘yearly average’ means the average per contribution year of contribution weeks in respect of which the husband (or claimant) has qualifying contributions, voluntary contributions or credited contributions in the appropriate period specified in s. l0l (1)(b).

8. It is not necessary to set out the provisions of ss. 101 to 103 because these sections merely set forth the conditions of receipt, the rates of benefit and provide for increases including increases for child dependants.

9. The relevant portion of Section 195 of the Act of 1981 provides that:

(1) A deserted wife’s allowance shall, subject to regulations, be paid to a woman—

(a) who has been deserted by her husband,

(b) who, if she is less than 40 years of age, has at least one qualified

child residing with her, and

purposes of this subsection by regulations.

(2) The rate of a deserted wife’s allowance shall be the same as the rate of the widow’s (non-contributory) pension which would be payable to the woman under Chapter 4 if she were a widow.

S.100 of the Act provided for the payment of a deserted wife’s ‘benefit’ and s. 195 provided for the payment of a deserted wife’s ‘allowance’.

10. No provision was made in the Act of 1981 for the provision of either ‘a benefit’ or an ‘allowance’ to deserted husbands, including the appellant.

11. The Act of 1981 was, however, amended by s. 6 of the Social Welfare Act 1989, the relevant portion of which provides:-

198B—(l) A deserted husband’s allowance shall, subject to regulations, be paid to a man who—

(a) has been deserted by his wife,

(b) has at least one qualified child residing with him, and

(noncontributory) pension under Chapter 4 of Part III.

(2) The rate of a deserted husband’s allowance payable to a person shall be the

same as the rate of a widow’s (non-contributory) pension payable to a widow under Chapter 4 of Part III.

12. This section provided, for the first time, for the payment to a deserted husband who complied with the conditions therein set forth of a means-tested allowance (not a benefit).

13. This situation was changed by the provisions of the Social Welfare Act 1990 which substituted a new Chapter 5A in the Act of 1981, thereby removing the provisions which had been made for a deserted husband’s allowance.

14. This new chapter provided for the payment of a lone parent’s allowance. S. 198A provided:-

(1)In this Chapter—

‘lone parent’ means, subject to regulations under s. 198F

(a) a widow,

(b) a widower,

(d) an unmarried person, or

(e) a person whose spouse has been committed in custody to a

prison or place of detention for a period of not less than six calendar months,

who has at least one qualified child normally residing with that person;

‘allowance’ means a lone parent’s allowance.

The provisions contained in s. 100 of the Act of 1981 with regard to the payment of the deserted wife’s benefit were amended by s. 25 of the Social Welfare Act 1992 which provided that:-

(1) S. 100 of the Principal Act is hereby amended by—

(a) the insertion in subs. (1) after paragraph (b) of the following paragraph:

(bb) does not have an aggregate of reckonable income and reckonable earnings in excess of a prescribed amount in the last complete income tax year or in such subsequent period as a deciding officer or an appeals officer may consider appropriate, and

(b) the substitution for subs. (2) of the following subsection:

(2) The circumstances in which a woman is to be regarded for the purposes of this section as having been deserted by her husband shall be specified in regulations.

(2) Paragraph (a) of subs. (1) shall not apply to any claim for deserted wife’s benefit made before the commencement of this section.

(3) This section shall come into operation on such day as the minister may appoint by order.

Whilst the pleadings herein invoked a variety of provisions of the Constitution, it was on Article 40.1 thereof that the plaintiffs based their claim. That article provides as follows:-

All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

That wives deserted by their spouses between 1970 and 1990 were more favourably treated in respect of social welfare payments than husbands similarly deserted during the same period is beyond dispute. The plaintiffs contended that this was an invidious and unconstitutional discrimination against deserted husbands. The defendants argued that the distinction in treatment between the two categories was permissible and led evidence in support of that contention.

Ms Marie McGarry, an assistant principal officer in the planning unit of the Department of Social Welfare, stated that the deserted wife’s allowance (originally introduced by the Social Welfare Act 1970) and the deserted wife’s benefit (first enacted by the Social Welfare Act 1973) were schemes ‘introduced to meet a perceived need at the time that wives were in a particularly difficult position and were not provided for by the social welfare code’. Ms McGarry gave specific evidence by reference to census returns and otherwise that in 1979 16% of married women were in the labour force and that by 1991 it had only increased to 31%. In addition she gave evidence that the average weekly earnings of female workers in industry in 1991 was 59.2% of the corresponding average weekly earnings of male workers. Ms McGarry confirmed that the rationale behind the deserted wife’s schemes was and still is that married women are more in need of income support than men. The accuracy of the foregoing statistics was not challenged nor their admissibility disputed. Instead it was argued that the available evidence as to the percentage of married men and married women in employment was irrelevant. On behalf of the plaintiffs it was argued that the appropriate comparison was between the percentage of deserted husbands in paid employment and the comparative figure in respect of deserted wives. It does not appear, however, that any such figures were available. Certainly they were not produced by the plaintiffs.

It has long been recognised that the burden of establishing the unconstitutionality of a law is a formidable one. In Pigs Marketing Board v. Donnelly [1939] I.R . Hanna J set down the standard in the following terms ( at p. 417):

When the court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.

The particular difficulty of establishing the unconstitutionality of legislation dealing with economic matters was recognised by Kenny J in Ryan v. Attorney General [1965] IR 294 at p. 312 in the following terms:-

When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizens. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation.

In relation to taxing statutes (which are in one sense the converse of social welfare legislation in that the former are the means by which public revenues are exacted so that they may be dispersed in part at least pursuant to the welfare codes). O’Hanlon J said in Madigan v. Attorney General [1986] ILRM 136 at pp. 151–152:-

It has been recognised, both in our own jurisdiction and in the United States, where the constitutional guarantees are closely analogous to those provided by the Irish Constitution, that tax laws are in a category of their own, and that very considerable latitude must be allowed to the legislature in the enormously complex task of organising and directing the financial affairs of the State.

Again it is settled law that Article 40.1 of the Constitution does not require that all citizens should be treated identically. As Ó Dálaigh CJ pointed out in O’Brien v. Keogh [1972] IR 144 at p. 156 (by reference to the earlier decision of this Court in State (Hartley) v. Governor of Mountjoy Prison Supreme Court 1967 No. 136, 21 December 1967):

‘A diversity of arrangements does not effect discrimination between citizens in their legal rights. Their legal rights are the same in the same circumstances. This in fact is equality before the law and not inequality. . . .’ Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances. It only forbids invidious discrimination.

This reasoning was repeated and extended in Murphy v. Attorney General [1982] IR 241 where Kenny J said (at p. 283):-

The mere fact that a heavier financial or other burden falls on some defined person or persons does not of itself constitute a repugnancy to Article 40.1. Having regard to the second paragraph of Article 40.1, an inequality will not be set aside as being repugnant to the Constitution if any state of facts exists which may reasonably justify it.

In the course of his judgment in Brennan v. Attorney General 449, [1983] ILRM 449, Barrington J stated at p. 480 of the report as follows:-

Following these principles the courts have stressed that Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances. It only forbids invidious discrimination. See O’Brien v. Keogh [1972] IR 144 and Landers v. Attorney General (1975) 109 ILTR 1.

There is a sense in which to legislate is to discriminate. The legislature in its efforts to redress the inequalities of life or for other legitimate purposes may have to classify the citizens into adults and children, employers and workers, teachers and pupils and so on. Pringle J stated in O’Brien v. Manufacturing Engineering Co. Ltd [1973] IR 334 that such division of the citizens into different classes was envisaged by the second sentence of Article 40.1. He then added (at p. 341):

Therefore it would appear that there is no unfair discrimination provided every person in the same class is treated in the same way.

No doubt this is true, but it might be prudent to express, what is perhaps implied in it, that the classification must be for a legitimate legislative purpose, that it must be relevant to that purpose, and that each class must be treated fairly.

The facts proved in evidence before the learned High Court judge show clearly how women in employment at the material times were at a financial disadvantage in comparison to men. Again the statistics adduced in evidence established the relatively small proportion of married women in the work force. Moreover the provisions of the Constitution dealing with the family recognise a social and domestic order in which married women were unlikely to work outside the family home. Furthermore the Married Women’s Property Acts 1882–1907 which significantly limited the rights of a married woman to deal with her own property were not repealed until the Married Women’s Status Act of 1957. An even more obvious impediment to the married woman engaging in business was the Civil Service Regulation Act 1956 which required the retirement on marriage from the civil service of women who were civil servants. It was not until 1973 that that prohibition was repealed by the Civil Service (Employment of Married Women) Act 1973 at about the same time as a comparable restriction on married women working in banks was lifted. These realities confirm and enliven the picture provided by the statistics given in evidence by the defendants. It is no function of this Court to adjudicate upon the merits or otherwise of the impugned legislation. It is only necessary to conclude, as this Court has done, that there were ample grounds for the Oireachtas to conclude that deserted wives were in general likely to have greater needs than deserted husbands so as to justify legislation providing for social welfare whether in the form of benefits or grants or a combination of both to meet such needs.

The plaintiffs’ claim was presented and contested on the narrow grounds that there was no economic justification for differentiating between deserted husbands and deserted wives. In confining the judgment to that issue it is not to be inferred that this Court has expressly or by implication accepted that other obstacles to the plaintiffs’ claim would have been resolved in their favour. In particular it must be emphasised that the court is not purporting to review in any way the established jurisprudence in relation to the construction of Article 40.1 of the Constitution or the basis of the right of equality enshrined therein. Again the basis on which the argument was presented and disposed of made it unnecessary to explore what remedy could have been available to the plaintiffs in the event of their succeeding in the proceedings which represented a challenge to the constitutionality of payments made to deserted wives without identifying any mechanism which could provide similar payments for deserted husbands.

Accordingly the appeal will be dismissed.