Ayavoro -v- HSE Anor
High Court
Judgment was given by Mr Justice Iarfhlaith O’Neill on February 6th, 2009.
Judgment
Officials of the HSE were justified in asking the applicant for documentation supporting his claim of habitual residency in Ireland, and his eligibility under the means test, when he applied for the jobseekers' allowance and the supplementary allowance.
Background
The case concerned an Irish citizen of Nigerian origin, a married man with two children.
Augustine Tony Ayavoro arrived in Ireland from Britain on January 4th, 2008. He is a law graduate, having obtained an LLB from John Moore’s University, Liverpool, and an LLM from Dundee University, obtained in September 2008.
He applied for the jobseekers allowance initially in Dublin, giving details of his wife and children on the form. Three days later he informed the social welfare office he was moving to Dundalk, and on January 10th he applied for the jobseekers’ allowance at the Dundalk social welfare office, giving an address at Claddagh Park, Dundalk.
The address was visited by a social welfare inspector, who was told by the main tenant that Mr Ayavoro was not there, was there occasionally and “his stuff was not there”.
On March 7th this inspector, Dympna Shaw, wrote to Mr Ayavoro seeking bank information and details of money obtained from friends and informing him that failure to furnish it may result in non- payment of his claim.
On March 13th, the applicant informed the social welfare office of a change of address and made an application for supplementary welfare allowance to the health centre in Dundalk.
He was interviewed by a community welfare officer, Catherine McHugh, who asked for photographic ID, bank and credit card statements, evidence that he had lived in the common travel area for the past two years and his wife’s social security number. He provided bank statements.
Ms McHugh also made inquiries in Britain which revealed that the applicant had been in receipt of child tax credits there. In an interview between Ms McHugh and the applicant, she repeated her request for documentation.
Mr Ayavoro said her actions were racially motivated. In a subsequent letter he said he had discharged the burdens of proof as to his habitual residence within the common travel area and said that the child tax credit was paid into his wife’s bank account for the maintenance of their children and had no bearing on his application.
He also said he was not in a position to provide any information relating to his wife’s bank account. He enclosed a copy of a rent allowance claim form as proof of residency.
His letter continued: “I shall not be supplying you with any documents and I am appealing to you to make an immediate decision based on the documents and information you have gathered on this matter . . . I have satisfied the requirement and yet for no just reason you are deliberately depriving me of my entitlement.”
He also alleged in this letter that Ms McHugh was racially prejudiced against him.
The same documents were produced by the applicant in support of his application for the jobseekers allowance. He was told the rent allowance claim form was not acceptable as proof of residency and that a rent book, letting agreement or utility bills were needed.
Further correspondence with the deciding officer for the jobseekers allowance took place, in which Mr Ayavoro explained that payments of £119 into a bank account was his mother’s pension credit in Britain and he enclosed his mother’s social insurance number.
On March 31st he was refused the jobseekers allowance on the basis that he had not demonstrated that his means were less than the threshold of €197.80.
On April 4th, he returned to the health centre and produced some bank statements, but not those of his wife. Ms McHugh re-examined his file and concluded that the conditions for supplementary welfare allowance were not met.
Mr Ayavoro appealed the refusal of the jobseekers allowance and received a request for outstanding documentation.
On June 24th he forwarded a bank statement, a credit card statement, a letter from the pension credit office in Britain in relation to his mother’s pension and a rent allowance form from his landlord.
He was asked for further statements from his bank account, a tenancy agreement, rent book or utility bills and documentary evidence of the transfer of the pension to his mother.
Mr Ayavoro began judicial review proceedings in relation to the supplementary welfare allowance.
In July his wife and children joined him and the family moved to Kildare, where it was suggested to him that his wife apply for the supplementary welfare allowance, with him as an adult dependent. She did so on August 7th and that was awarded to her immediately.
Some confusion arose concerning his application for the same allowance and he was informed that he was eligible. In the meantime, he had furnished documents which included a statement from Dundee University saying he had been a full-time student there until September 2008.
He was then told that full-time students were not eligible for supplementary allowance and this was removed.
However, it was later reinstated as his wife was the applicant and his student status was not relevant to her payment as he was a dependant.
Meanwhile, a review of his application for the jobseekers’ allowance concluded that a further bank account revealed by the applicant, which showed transactions of €104.63 from January 28th to April 7th, did not account for his day-to-day living expenses for that period.
Decision
Mr Ayavoro had taken two sets of judicial review proceedings against the decisions not to grant him the jobseekers allowance and supplementary welfare allowance, seeking orders of certiorari quashing these decisions. He alleged that the officials involved had acted in bad faith, dishonestly and were motivated by racism.
Mr Justice O’Neill said: “I am satisfied that the information and documents requested by both respondents for either application were relevant and indeed necessary to satisfy both respondents that the applicant was entitled to the benefits claimed.”
The judge said that in the light of the fact that his wife and family lived in Britain and the documents furnished disclosed a picture indicating that the applicant spent very little time in the jurisdiction, the respondents were entitled to be concerned about his habitual residency and financial eligibility.
“It is unfortunate that the applicant’s reaction to these legitimate requests was argumentative to the point of obstruction,” Mr Justice O’Neill said. He said the allegations of racism were “attacks on the good names and reputations of these servants of the State, [and were] an abuse of process which must be roundly condemned.”
At all times, the onus was on the applicant to respond to the queries made and provide the necessary documentation and information.
He rejected the allegation that the treatment of the applicant was contrary to Article 3 of the European Convention on Human Rights.
In relation to the second issue, he said the first thing to be observed was Mr Ayavoro’s “complete lack of candour” in seeking leave for judicial review, in that he omitted any mention of the fact that he had acquiesced in his wife’s application for supplementary welfare allowance, which she had been granted in full, with him as dependant.
He also dismissed that a mistake in the description of one of his accounts was a basis for rejecting the decision not to grant him a jobseekers allowance.
In addition, he said that, given the fact that from August 8th, 2008, the applicant and his family had been in receipt of the supplementary welfare allowance meant that at all times the proceedings had been moot.
All the reliefs sought were refused.
Lawyers:The applicant represented himself. The names of the counsel representing the State were not available.