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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Healy v. Minister for Social Welfare [1998] IEHC 145; [1999] 1 ILRM 72 (5th October, 1998)
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Cite as: [1998] IEHC 145, [1999] 1 ILRM 72

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Healy v. Minister for Social Welfare [1998] IEHC 145; [1999] 1 ILRM 72 (5th October, 1998)

THE HIGH COURT
Record No. 3739 P/92
BETWEEN
MICHAEL HEALY AND JIM PARLE
PLAINTIFFS
AND
THE MINISTER FOR SOCIAL WELFARE
DEFENDANT

Judgement of Miss. Justice Carroll delivered on the 5th day of October 1998

1. In this action, the Plaintiffs claim to be entitled to Family Income Supplement (FIS) while being employed on a Social Employment Scheme (SES). The First named Plaintiff is a married man with two children. He was out of work from 1983. He was recruited for a Social Employment Scheme (SES) by Wicklow County Council as a labourer and was employed by them from 3rd September, 1990 to 30th August, 1991, 22nd March, 1992 to 26th February, 1993 and from 30th August, 1993 to 25th February, 1994. The Second named Plaintiff is also a married man with two children. He had been employed as a long distance lorry driver up to 1988. He was employed by Wicklow County Council on a Social Employment Scheme from 3rd September, 1990 to 30th August, 1991 as a labourer. He did not re-apply for further employment as he resumed work, driving a truck. He has no claim after 30th August, 1991.

2. Under the terms of their employment, they worked 40 hours every alternate week but, in accordance with the terms of the Scheme, they were paid weekly.

3. The First named Plaintiff applied for Family Income Supplement and was refused on 9th October, 1990 because he was taking part in an SES Scheme. On appeal he was again refused by letter dated 8th November, 1990 which stated:-


"This supplement is paid to employees who are normally engaged in full time remunerative employment.

The purpose of FIS is to assist employees on low earnings with families to continue in their occupation. This form of assistance was extended to employees with an average of 20 hours a week. Persons participating in projects under the Social Employment Scheme are not deemed to be normally employed having regard to and in particular to the conditions under which such projects must operate and it was not the intention that the supplement should be made payable to them. While Social Employment Schemes are designed to give unemployed people an opportunity of engaging in part-time employment, usually on a half time basis, the rates of payment under the Scheme are determined by reference to the rate of unemployment assistance. They also have regard to the fact that participants are free to take up other part-time employment for the remainder of the week while they are not on the Scheme".

4. Mr. Parle made a similar application and was similarly refused for the same reasons.

5. Their solicitor wrote on their behalf and received a reply dated 19th March, 1991 informing her as follows:-


"It is a statutory condition for receipt of Family Income Supplement that a person must be engaged in full-time remunerative employment as an employee. The latter is described as not less than 20 hours each week. As both Mr. Parle and Mr. Healy are working 40 hours every second week (confirmed by employer - Wicklow County Council), they do not satisfy the required conditions of working 20 hours each week. They are therefore illegible to claim Family Income Supplement".

6. The First named Plaintiff made a further claim in respect of the years 1992/1993 and 1993/1994 and was rejected on the grounds that he was disqualified under S.I. No. 279 of 1991 because he was employed under a Social Employment Scheme.

7. The Social Employment Scheme was launched in February 1985 as one of a number of new initiatives designed to reintegrate the long term unemployed into the active Labour Force. It was supported by the European Social Fund. An average of 20 hours per week on local projects was provided for a period up to 52 weeks. There was flexibility in the work periods (e.g. week on/week off or two and a half days per week) to suit the needs of the project on condition that no individual worked more than 40 hours in any two week period. Participants had the opportunity to undertake other part-time work and were encouraged to utilise their time to look for regular full time employment. SES projects were sponsored by voluntary organisations or public sector bodies. Typically projects were involved in improving local environment, sports, arts, tourism or community development. Projects were to be non-profit oriented and required approval by Trade Unions to ensure they could not displace other jobs. From 1992 on, the Social Employment Schemes were entirely Exchequer funded. The participants could not claim unemployment benefit or sign on, on the week they were not working. Payment was in excess of unemployment benefit.

8. The Family Income Supplement is a weekly cash payment to help families at work on low pay. A person who is qualified is entitled to a cash payment every week for a year and can reapply if qualified. The amount of the FIS depends on family circumstances (e.g. number of children). The joint income of spouses is taken into account.

9. The statutory entitlement is contained in Part IV A of the Social Welfare Act of 1981 (the principal Act) as inserted by Section 13 of the Social Welfare Act, 1984. Under that Part, Section 232 A defines family as:-


(A) A person who is engaged in remunerative full time employment as an employee, and
(B) (deals with spouses) and
(C) (deals with children).

10. Under Section 232 F it is provided:-


(1) The Minister may make regulations for the purpose of giving effect to this Part.
(2) Regulations under this Section may, in particular and without prejudice to the generality of subsection (1).
--------
(3) Determine the circumstances in which a person shall be regarded as being engaged in remunerative full time employment as an employee.

11. The definition of "family" was extended by the Social Welfare Act, 1991, (Section 47) to include co-habiting couples but the provision concerning a person "who is engaged in remunerative full time employment as an employee" was not changed.

12. The Social Welfare (Consolidation) Act, 1993 re-enacted the definition of family leaving unchanged the provision concerning a person "who is engaged in remunerative full time employment as an employee".

13. Therefore, at all times relevant to these claims, the Plaintiffs had to be persons who were engaged in remunerative full time employment as employees.

14. In exercise of his power to make regulations under (inter alia) Section 232 F of the principal Act (as inserted by the Social Welfare Act, 1984) the Minister brought into operation S.I. 278 of 1984 (the principle regulations) [entitled Social Welfare (Family Income Supplement) Regulations, 1984]. It was provided by Article 5:-


"For the purposes of these regulations a person shall be regarded as being engaged in remunerative full time employment as an employee where -
(a) he is normally engaged in remunerative employment for not less than 30 hours a week; and
(b) (not relevant)".

15. By S.I. No. 446 of 1986 [entitled Social Welfare (Family Income Supplement) (Amendment) Regulations, 1986] it was provided by Article 2 that the principle regulations were amended by the substitution of 24 for 30 in Articles 5A and 5B.

16. Statutory Instrument 196 of 1989 [entitled Social Welfare (Family Income Supplement) (Amendment) Regulations, 1989] substituted a new Article 5 for Article 5 in the principle regulations as follows:-


"For the purposes of these regulations, a person shall be regarded as being engaged in remunerative full time employment as an employee where -
(a) he is normally engaged in remunerative employment and he or his spouse are so engaged for an aggregate of not less than 20 hours a week; and
(b) (not relevant)".

17. These regulations came into operation on 27th July, 1989.

18. S.I. No. 189 of 1990 [entitled Social Welfare (Family Income Supplement) (Amendment) Regulations, 1990] substituted another new Article 5 of the principle regulations in lieu of the one substituted by S.I. No. 196 of 1989. The new Article 5 provided:-


"For the purposes of these regulations a person shall be regarded as engaged in remunerative full time employment as an employee where -
(a) he is engaged in remunerative employment which is expected to continue for a period of a minimum of six months and he is so engaged for not less than 20 hours a week or he together with his spouse are engaged in such employment for an aggregate of not less than 20 hours a week; and
(b) (not relevant)".

19. S.I. No. 279 of 1991 [entitled Social Welfare (Family Income Supplement) Regulations, 1991] operative on 24th October, 1991 revoked the principle regulations and the Social Welfare (Family Income Supplement) (Amendment) Regulations from 1985 to 1990. It was provided by Article 7 as follows:-


"(1) For the purposes of these regulations a person shall, subject to sub-article 2 of this article be regarded as being engaged in remunerative full time employment as an employee where -
(a) he is engaged in remunerative employment which is expected to continue for a period of a minimum of six months and he is so engaged for not less than 20 hours a week, or he together with his spouse are engaged in such employment for an aggregate of not less than 20 hours a week; and
(b) (not relevant).
1
(2) (Not relevant)".

20. Article 22 provided:-


"The provisions of the enactments mentioned in column (1) of Schedule A hereto shall apply to a supplement and in such application shall be modified so that the said provisions shall be read as set out in column (2) of the said Schedule."

"Supplement" means "Family Income Supplement". Column (1) of Schedule A refers to subsections (1), (2A) and (6) of Section 35 of the Social Welfare Act, 1981. The modifications set out in column (2) in relation to subsection 2A provides:-

'A person shall be disqualified for receiving supplement during any week in which he is employed under a Scheme administered by FÁS and known as the Social Employment Scheme'."

21. The amended Statement of Claim (delivered July, 1996) claims declarations that the decision to refuse the Plaintiffs' FIS was ultra vires, that the refusals violated the Plaintiffs' rights to natural and constitutional justice, that the Social Employment Scheme constitutes employment within the meaning of the Social Welfare Acts, that the provisions of S.I. No. 279 of 1991 insofar as it purports to disqualify a person from Family Income Supplement during any week in which he is employed under a scheme administered by FÁS is ultra vires the power of the Defendant and they claim payment of the Family Income Supplement with interest.

22. By amended defence delivered the 12th day of July, 1996, the Defendant pleads that the Plaintiffs were not engaged in remunerative full time employment when engaged in a Social Employment Scheme. The Defendant claims he is entitled to make regulations under Section 232 F of the 1981 Act defining the circumstances in which a person should be regarded in remunerative full time employment as an employee and he refers to Article 5 of the Social Welfare (Family Income Supplement) Regulations, 1984 as inserted by Article 5 of S.I. No. 196 of 1989 whereby it is provided that only persons working at least 20 hours a week will be regarded as being engaged in remunerative full time employment.

23. Without prejudice to the foregoing, it is pleaded that Article 22 of the Social Welfare (FIS) Regulations, 1991 was intra vires.

24. The delegation of legislative powers arose in City View Press Limited -v- An Chomhairle Oiliuna (1980) I.R. 381. Chief Justice O'Higgins (at page 398) deals with the matter as follows:-


"The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever changing situations which confront both the Legislature and the Executive in a modern state. Sometimes, as in this instance, the Legislature, conscious of the danger of giving too much power in the regulation or order making process, provides that any regulation or order which is made should be subject to annulment by either Houses of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question proposes to having been made. In the view of this court, the test is whether that which is challenged as an unauthorised delegation of Parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits - if the law was laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body - there is no unauthorised delegation of legislative power".

25. Also in the case of Cassidy -v- Minister for Industry and Commerce (1978) I.R. 297. Henchy J. said at page 310:-


"The general rule of law is that where Parliament has by statute delegated a power of subordinate legislation, the power must be exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation. Otherwise, it will be held to have been invalidly exercised for being ultra vires. And it a necessary implication in such statutory delegation that the power to issue subordinate legislation should be exercised reasonably".

26. The question is also dealt with in Cooke -v- Walsh (1984) I.R. 710, Harvey -v- The Minister for Social Welfare (1990) 2 I.R. 232 and Kenny -v- The Minister for Social Welfare (1986) I.R. 693.

27. The first issue to be dealt with is whether the provision in the various regulations that a person shall be regarded as being engaged in remunerative full time employment as an employee where he is so engaged for not less than 20 hours a week, is valid. The Plaintiffs have not argued that this exercise of Ministerial power to make regulations is ultra vires and, understandably so, for the Plaintiffs rely on this provision to base their claim.

28. It appears to me that this regulation is a detail filled in by the Defendant and gives effect to principles and policies contained in the statute itself. The condition is quite clear; it requires 20 hours work per week not an average over a fortnight.

29. At all material times, the regulations providing for 20 hours work per week in order to be regarded as being engaged in remunerative full time employment as an employee applied to the Plaintiffs and at all material times the Plaintiffs were not working 20 hours per week. Since this condition applied regardless of Article 22 of S.I. No. 279 of 1991 modifying Section 35 of the Social Welfare Act, 1981, it is not necessary to go on to decide whether this modification is ultra vires. The Plaintiffs' argument that they were excluded by virtue of Article 22 is irrelevant since they were never included in the general definition because of the provisions as to the number of hours worked per week.

© 1998 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1998/145.html