BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Power & Ors -v- Minister for Social & Family Affairs [2006] IEHC 170 (28 February 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H170.html Cite as: [2007] 1 IR 543, [2007] 1 ILRM 109, [2006] IEHC 170 |
||
[New search] [Help]
|
Judgment Title: Power & Ors -v- Minister for Social & Family Affairs Composition of Court: Mac Menamin J. Judgment by: Mac Menamin J. Status of Judgment: Approved |
Neutral Citation Number: [2006] IEHC 170 THE HIGH COURT [2004 No. 137 JR] BETWEENJUDICIAL REVIEW MICHAEL POWER, RISTEARD MORRISSEY, SUZANNE DUNNE, PAUL NEWMAN AND OWEN MCCARNEY APPLICANTS AND THE MINISTER FOR SOCIAL AND FAMILY AFFAIRS RESPONDENT JUDGMENT of Mr. Justice John MacMenamin dated the 28th day of February, 2006.1. Factual Background The applicants named in these judicial review proceedings are all full-time students who were admitted to the Back to Education Allowance (hereinafter “the scheme”) operated under the aegis of the Department of Social and Family Affairs. They were so admitted at a time when the terms and conditions of that scheme were set out in a booklet entitled “Back to Education Programme SW70” dated June 2002. 2. The scheme provides payments for persons in receipt of social welfare payments who decide to return to education. It is designed to promote second chance education for those who have not been to third level education. Eligible persons may return to college and continue to receive social welfare payments. Such payments may not otherwise be available, in instances, where for example the student is unavailable for full-time work and is thus ineligible for unemployment assistance. The scheme is administrative, that is set up on a non statutory basis, and was approved by a government decision. The published booklet outlines a number of ways in which a successful applicant can return to full-time or part-time education while continuing to receive income support. The programmes range from basic foundation courses through to post graduate university courses. 3. Under the rubric “Third Level Option” it is stated therein:
5. The first named applicant applied for inclusion on the scheme early in the month of August 2002. By notification dated 5th September, 2002 he was informed that his application was successful and that, subject to satisfying certain conditions, he was eligible for payment of the allowance. 6. The first named applicant contends that, but for the operation of the scheme and the payment of the allowance, he would have been unable to go to university due to financial reasons. One of the reasons that induced him to apply under the scheme was that the payment was an alternative to other social welfare entitlements. The applicant specifically refers to the fact that in the booklet of June 2002 it was stated
8. By notification dated 26th March, 2003 the first named applicant became aware that certain changes had been made to the terms of the said scheme. The respondents stated that:
In the Dail on March 27th 2003 the then Minister respondent answered questions in relation to the scheme. Specifically there appears to be some imprecision in the course of responses to questions put by an opposition deputy as to whether or not all persons in the scheme would not be affected. 9. On the website of the respondent’s Department on 28th March, 2003 it was still stated in relation to the scheme that “you … be paid for the full duration of your course, including holidays”. However the applicant was still not entirely certain of his position and by letter dated 28th March, 2003 he wrote to the respondents to outline his concerns in relation to the changes in the scheme and to the effect that he believed they would have on his situation. It is clear that while changes were envisaged by the respondent, the precise criteria for continuing eligibility had not been finally determined. 10. In particular there appeared uncertainty as to the status of students who had already entered the scheme 11. However later it was stated that persons availing of the scheme would, during the university summer period, be entitled to apply for the assistance that they might need but that it was to be hoped and anticipated that they would find employment in the summer months and revert to the Back To Education Allowance to complete there relevant studies. Ultimately it became clear that persons in the applicants category i.e. undergraduates and who were not members of certain other categories would be rendered ineligible to avail of the scheme or all during the summer vacation period. The first named applicant among others commenced a campaign to reverse these changes. This took the form of lobbying and letter writing to members of the government, the Oireachtas, and academic staff, demonstrations, and the preparations of reports and submissions on the question. The campaign continued up to the announcement of the budget for 2004 in December 2003. The activities met with some success since the proposed withdrawal of the benefit in respect of post graduate students was reversed. The first named applicant wrote a series of letters. He informed that his letters seeking the reversal of the change were receiving attention. However it became clear that the change as far as concerned undergraduates would not be reversed through political action. Thereafter the applicant sought legal advice and initiated these proceedings in which leave was granted on February 23rd 2004 (O’Neill J.). 12. The Claim Each of the applicants and one hundred and seventy three other persons who were added to the proceedings as applicants assert a legitimate expectation that the scheme as constituted when they were admitted thereto would continue for the duration of their presence at college. In particular they contend that they would continue to receive payments under the scheme during college vacations, and that the respondent, through the booklet, made a statement amounting to a promise or representation that such vacation payments would be made for the duration of the course of education undertaken by participants in the scheme. They say that this representation was made to persons in receipt of certain social welfare payments and who were interested in returning to education. It is contended that the promises thus binding as regards those students who entered the scheme on foot of the promise constitute a defined group of persons. The applicants herein do not dispute that the scheme could be amended for future entrants. But by entering upon the scheme they assert that they reasonably and legitimately expected that the terms and conditions of the scheme would remain akin to those extant on their entry to the scheme for the duration of their eligibility. In the circumstances it is contended that it would be unjust for the respondent to resile from the representation made to the participants at the outset and upon which they contend they relied. It is now necessary to consider the question of elapse of time and the locus standi of the applicants. 13. The Law - Elapse of Time Under Order 84 Rule 21(1) of the Rules of the Superior Courts it is provided that:
15. The issue of elapse of time was considered in the case of O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301. In the course of that judgment at p. 315 Costello J. stated
16. In O’Donnell the plaintiff had to explain a delay of between four and six years in commencing the proceedings. The evidence was that he had declined to pay the water charges for three preceding years which he thought were unfair. In 1987 he concluded that they were invalid, but took no steps to challenge them by way of legal proceedings believing that the issue would be resolved in proceedings against other householders. Costello J. took the view that this constituted good reasons until June 1998. From then until the proceedings commenced Mr. O’Donnell contested
17. I am satisfied that in the instant case the first named applicants circumstances strongly resemble those of the plaintiff in O’Donnell v. Dun Laoghaire Corporation if the facts are not indeed stronger. On the evidence the first named applicant has at all times contested and been actively involved in the campaign to reverse the decision the subject matter of these proceedings. Indeed, unlike the position in O’Donnell v. Dun Laoghaire Corporation the campaign had some limited success, and elicited indications from the respondent to the effect that further changes might be introduced along the lines for which the applicant was agitating. 18. This is evidenced by a series of letters to the respondent to another Minister of State; to an opposition spokesperson; in a presentation made to the joint Oireachtas Committee on Social and Family Affairs by the then President of the Union of Students in Ireland on 6th May, 2003, a response from the respondents department dated 7th May, 2003, in a letter received from the Minister, of State a letter to a departmental official in May 2003, a letter received from the Office of the Ombudsman on 16th July, 2003, further correspondence from the first named applicant to the Minister dated 24th November, 2003 and from the Minister dated 25th of that month and year. Thereafter there is exhibited a submission made for the reversal of this particular measure dated 28th November, 2003. I am satisfied therefore that insofar as concerns the first named applicant evidence has been adduced which is sufficient to satisfy the test set out by Costello J. in O’Donnell v. Dun Laoghaire Corporation. Applying an objective test I consider that on the evidence there are reasons which both explain the delay and afford justifiable excuse therefor. In particular I consider that the circumstances of the first named applicant strongly resemble the position of the plaintiff in O’Donnell where being a person of modest means he sought to obtain redress through political pressure for a period of time and thereafter it having become evident that he had failed in the endeavour he was ordered to the remedy of judicial review. I think the position is reinforced by the fact that as a matter of fact certain changes in eligibility were achieved although not in relation to the applicant. 19. However while such evidence relating to the first applicant brings him within the discretionary power of the court as outlined earlier, I do not consider that there is such evidence in relation to the remainder of the applicants to these proceedings, nor, a forforti, in relation to a list of 173 other persons who were added as applicants to the proceedings on foot of correspondence between the parties. It is contended that these persons too were eligible under the Scheme and that they sustained the same damage or detriment as the applicants herein. During the course of argument counsel now acting for the applicant, but who was not involved earlier in the proceedings accepted there was no such evidence regarding the position of the second to fifth named applicants nor in relation to the other applicants who had been added to the proceedings. 20. In the case of deRoiste v. The Minister for Defence [2001]. Fennelly J. considered the circumstances in which judicial review may be granted ex debito justitiae. In particular that judge helpfully explained and analysed a number of the authorities which were relied on in a previous decision of the court on the issue (see McCarthy J. in The State (Furey) v. Minister for Defence [1988] ILRM 80; The (State) Vozza v. O’Floinn [1957] I.R. 227; Rex v. Stafford Justices, exp. Stafford Borough [1940] 2 KB 33). 21. At p. 220 of the judgment Fennelly J. stated
and The State (Vozza) v. O’Floinn [1957] I.R. 227 reveals that though in each case the order was one to which the applicant was entitled ex debito justitiae the court considered whether the delay and lack of candour respectively would bar the applicant from relief. In each case the court concluded that not that these were inadmissible grounds, but rather they were not established on the facts of the respective cases.” 23. At p. 221 Fennelly J. continued
24. It is then necessary to consider the position of the first named applicant on the basis of the legal submissions made. 25. Legitimate Expectation In Glencar Exploration plc v. Mayo County Council [2002] 1 IR 84 Fennelly J. made the following observations on the issue of legitimate expectation.
The second question is, if so, has that applicant satisfied the preconditions described by Fennelly J? In answering these questions it is necessary first to advert to the fact that the scheme in this case is not a statutory scheme. It is an administrative non statutory scheme approved by government decision only. 26. In Webb v. Ireland Finlay C.J. described the doctrine of legitimate expectation stated that
2. In protecting those interests the court will ensure that where that expectation relates to a procedural matter, the expected procedures will be followed. 3. Where the legitimate expectation is that a benefit will be secured, the courts will endeavour to obtain a benefit or to compensate the applicant whether by way of an order of mandamus as by an award of damages, provided that to do so is lawful. 4. Where a Minister or public body is given by statute or statutory instrument a discretion or a power to make regulations for the good of the public or of a specific section of the public, the court will not interfere with the exercise of such discretion or power, as to do so would be tantamount to the court usurping that discretion or power itself and would be an undue interference by the court in the affairs of the persons or bodies to whom or to which such discretion or power was given by the legislature”.
grant-giving policy] and the doctrine of legitimate expectation: does the latter not allow in effect a fettering of the decision maker’s discretion? Two points need to be made. The first is that a legitimate expectation will arise only if the court thinks that there is no good reason of public policy why it should not. That is why the word “legitimate” is used rather than the word “reasonable”. The matter is not to be judged just from the claimant’s point of view. The interest to the claimant in being treated in the way expected has to be balanced against the public interest in the unfettered exercise of the decision maker’s discretion; and it is the court which must ultimately do this balancing. Secondly, the British Oxygen principle is concerned with ensuring that policies are properly applicable to the particular case in hand, where as the legitimate expectation principle is designed to prevent the alteration of a policy which the citizen accepts as applicable”. 29. It is clear that the expectation in this case relates to a benefit rather than to a procedure. In Glencar the Supreme Court expressly declined to rule upon the point as to whether the doctrine of legitimate expectation can always be successfully relied upon in order to obtain a benefit sought in a particular case. However on the basis of the third test in Abrahamson outlined above seems to me that the issue has been decided in this jurisdiction where (as here) public authorities are carrying out functions of an administrative or non statutory nature regarding a clearly defined category of persons who avail of a scheme on an individualised basis by way of application form analogous to contract. 30. The point is illustrated in the case of R. v. North and East Devon H.A. ex parte Coughlan [2001] QB 213 where the respondent had guaranteed a “home for life” to the applicant who suffered from disabilities in a residential home. The subsequent decision to close that home was quashed by the Court of Appeal on certiorari. In so doing that court held that where a public body acted to induce a legitimate expectation of a substantive benefit, to frustrate that benefit would be so unfair that it would amount to an abuse of power. In such circumstances the court had to determine whether there were such overriding interests to justify a departure from the promise. It further considered that the fact that the consequence to the public authority of honouring the expectation was financial only was not a relevant factor. 31. In Coughlan Lord Wolfe MR described three categories of expectation, the third of which was described as follows;
33. One turns then to the issue of the representation. Here the applicant relies on the decision of Keogh v. The Criminal Assets Bureau [2002] 1 IR 84; in the course of that judgment Keane C.J. stated
In this case we are concerned with the specific undertaking to give taxpayers full timely and accurate information as to the provisions of a notoriously opaque and difficult code …” In a manner analogous to that in Keogh, I consider that the respondent herein issued a statement or adopted a position amounting to a specific promise or representation, express or implied, as to how it would act in respect of an identifiable area of its activity. Furthermore, through the booklet and other material exhibited, the representation was conveyed to an identifiable group of persons, namely those individuals who had entered, obtained the benefit of the scheme, and who were in third level education by the time the decision challenged in these proceedings was adopted. The representation formed part of the transaction definitively entered into by persons who commenced third level education on the basis of representations contained in the booklet. It was reasonable for the first named applicant to conclude that the respondent would abide by the representation to the extent that it would be unjust to permit the respondent to resile therefrom. One need only go as far as the statement in the booklet, referred to earlier, that “the allowance is payable for the duration of the course, including all holiday periods. It is not means tested so you may also work without affecting your payment”. The first named applicant as a beneficiary of the scheme came within a category of persons who were prevented from otherwise obtaining educational benefit by reason of their socio economic status. On that basis I consider that it would be unjust to permit the respondent to alter the applicants’ circumstances once he had committed himself to following a course of third level education on foot of the respondents representations. The first named applicant has suffered detriment as a consequence of the breach of the commitment entered into by the respondent and on foot thereof that he has sustained a loss. It is necessary then for the court to consider the reilef to which the applicant may be entitled. For the findings which have been made do not in the circumstances justify judicial review by way of certiorari. In the year 2003 the applicant actually obtained work during the summer vacation. The court has been informed that as a consequence thereof he sustained a loss or detriment in the sum of €4,200.51. In the summer of 2004 he was unable to find work and therefore he continued to remain on unemployment benefit. A similar position obtained in the year 2005. The applicant also has, in order to continue to avail of third level education, mortgaged his home a second time and, is substantially in debt. However the fact remains that in the instant case he did not seek relief from the courts in the year 2003. No application for any form of interim relief whether by way of injunction or otherwise was sought. On foot of the position in which he found himself the applicant understandably obtained work, although by doing so it necessarily had the effect of depriving him of the benefit which would normally accrue to a third level student of a vacation at which point he may have enjoyed the company of his family or furthered his studies. The failure to seek any legal remedy in the year 2003 has therefore certain consequences. While I am satisfied that good grounds have been established to extend the time within which judicial review may be sought the elapse of time must affect the reliefs to which the applicant is entitled. The conduct which was impugned has occurred. The benefit which the applicant sought and detained has been removed. He has, by dint of his own efforts continued his third level education and has now reached the fourth and final year of his science undergraduate course. But the court must have regard to the fact that the conduct of the applicant in refraining from seeking a judicial remedy in the year 2003 has the effect of debarring him by his own conduct from obtaining judicial review by way of certiorari prohibition or injunction. 35. I am satisfied however that the applicant herein is entitled to a declaration that the decision of the respondent to implement the said changes was contrary to his legitimate expectation. He is entitled to restitution, that is to be placed in the same financial position as he would have been in had the decision not been made. Having made the declaration and set out the nature of the applicants entitlement I will hear counsel on the extent of the restitution and the ultimate form of the order. |
