Sheehan -v- Minister for Social and Family Affairs Anor, High Court:judgment was delivered by Mr Justice John MacMenamin on January 14th, 2010
Judgment
An application for judicial review of a decision concerning a Jobseeker’s Allowance and Supplementary Welfare Allowance was rejected on the grounds that it was “precipitate, unjustified and misconceived” as the applicant had not exhausted all the remedies open to him, including the appeals procedure.
Background
The applicant, Michael Sheehan, brought the proceedings himself, assisted by a “MacKenzie friend”. He sought a declaration that the “practices, rules and regulations and procedures” of the Minister for Social and Family Affairs and the HSE violated his constitutional rights and sought orders to quash decisions made relating to his alleged entitlement to Jobseeker’s Allowance and Supplementary Welfare Allowance.
At the centre of the case was whether he formed part of a “couple” under section 142 (4) (a) of the Social Welfare Consolidation Act. This describes a “couple” as a married couple living together or a man and woman cohabiting as husband and wife. The question of his address was relevant to this.
The applicant, an unemployed single man, lives in Tralee, Co Kerry. He has a seven-year-old daughter who lives with her mother in Glencar, Co Kerry, and he plays a significant part in her upbringing.
The Act in question requires a claimant to furnish certain information, and attend at any office as directed by the Minister. The applicant was receiving a Jobseeker’s Allowance of €204.30 a week, which was stopped on April 1st, 2009. He sought payment of a Supplementary Welfare Allowance from the HSE which was refused on September 22nd, 2009.
An official in the Department of Social and Family Affairs stated that Mr Sheehan had been refused the Jobseeker’s Allowance because he had failed to provide “confirmation of current address”.
He appealed this decision, and the appeal was to be heard in Tralee on January 18th, 2010. However, in the meantime he took judicial review proceedings, which were heard on December 21st, 2009.
Mr Justice MacMenamin pointed out that this proposed appeal did not exhaust the appeals process, and it could be further appealed to a chief appeals officer, and his or her decision can be further appealed to the High Court on a point of law. The applicant drew attention to the regulations which provide for an appeal within “a reasonable time”. The question that arose was whether there had been a breach of the statutory time limit.
He then turned to the matter of the Supplementary Welfare Allowance, for which the applicant had originally applied in 2005. At that time he provided an address in Glencar, the address at which his daughter and her mother resided. He was asked to provide accounts and bank statements but did not, and did not seek to progress the application further.
He made another application in April 2009, following the suspension of his social welfare payment, from his address in Tralee. On it he made no reference to being in full-time education. The matter was dealt with by a community welfare officer, and he filled in a form. He made reference to the fact that an officer from social welfare had called to his house earlier in April, when he was not there, and he was advised to contact the social welfare officer. He took no further steps in relation to the Supplementary Welfare Allowance until August 2009.
In the form he indicated he was in full-time education. He stated on the form relating to “spouse/partner” and “residence” that they were “not applicable”.
The community welfare officer called to the address he had given, but no one was there. She left a note asking him to call her. In support of his application the applicant had submitted correspondence with an account in his name in Glencar, the same address as his former partner and daughter.
On September 22nd, 2009, the acting superintendent community welfare officer disallowed the application for supplementary welfare allowance pending the appeal in relation to the Jobseeker’s Allowance. He said it was not possible from the application provided to determine whether the applicant was living with his former partner or with his brother.
This decision was appealed, and the appeal was rejected. The appeals officer indicated a fresh application could be made from the Glencar address, or he could appeal. No appeal or fresh application was lodged, and the judicial review proceedings were launched.
Decision
In relation to the Jobseeker’s Allowance, the judge said that the failure to exhaust remedies, while not determinative, was a significant factor. It was not shown that there was any want of jurisdiction, breach of fair procedures of error of law.
He said he would make no comment on the matters going to appeal, other than to refer to the obligations imposed on those who seek to pursue an appeal. The Minister’s officials were entitled to seek information and the applicant was required to provide the type of information identified.
In relation to the Supplementary Welfare Allowance, he had also failed to exhaust all the remedies. He was entitled at all times to lodge a fresh application and furnish information in order to permit a new decision to be made. In any event, if he was successful in his appeal of the decision on the Jobseeker’s Allowance, he would not be entitled to receive the supplementary allowance.
Mr Justice MacMenamin added a warning concerning the conduct of the applicant, addressed both to him and to those who assist lay litigants. “His resort to judicial review was precipitate, unjustified and misconceived,” he said. “He brought proceedings when he should have procured the necessary information, and could have availed of the appeals procedure. Those who assist lay litigants should ensure that such persons are advised on points such as those . . . and the fact that in the event of failure an unsuccessful party faces the risk of an adverse award in costs.”
The full judgment is on www.courts.ie
The applicant appeared in person; Joe Jeffers BL, instructed by the Chief State Solicitor, for the Minister and John Lucey BL, for the HSE.