B.M. & Anor v Chief Appeals Officer & Ors (Approved) [2023] IEHC 359 (21 June 2023)

B.M. & Anor v Chief Appeals Officer & Ors (Approved) [2023] IEHC 359 (21 June 2023)

Section 186(2) of the Social Welfare Consolidation Act 2005 is permissive and confers discretion on the Minister for Social Protection to make regulations varying the means test or rate for carer's allowance. There is no statutory obligation to make such regulations. The failure to legislate under s.186(2) is not unlawful, unconstitutional, or ultra vires. The current scheme is prescribed by primary legislation and does not violate constitutional or ECHR rights.

Citation
[2023] IEHC 359
Parties
First Applicant: BM; Second Applicant: JM (a minor suing by his mother and next friend BM); First Respondent: Chief Appeals Officer; Second Respondent: Social Welfare Appeals Office; Third Respondent: Minister for Social Protection; Fourth Respondent: Ireland; Fifth Respondent: The Attorney General
Jurisdiction
Ireland
Judgment Date
21 June 2023
Procedural Posture
Judicial Review / Final Judgment
Outcome
application refused
Legal Topics
Statutory Interpretation, Ministerial Discretion, Means Testing, Carer's Allowance, Constitutional Rights, Regulations Under Social Welfare Consolidation Act 2005
Administrative Law Constitutional Law Social Welfare Law Statutory Interpretation Ministerial Discretion Means Testing Carer's Allowance Constitutional Rights +1 more

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Parties

BM

First Applicant

JM (a minor suing by his mother and next friend BM)

Second Applicant

Chief Appeals Officer

First Respondent

Social Welfare Appeals Office

Second Respondent

Minister for Social Protection

Third Respondent

Ireland

Fourth Respondent

The Attorney General

Fifth Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the Minister for Social Protection is obliged to make regulations under s.186(2) of the Social Welfare Consolidation Act 2005 to vary the means test for carer's allowance
  2. 2 Whether the failure to make such regulations is unlawful or unconstitutional
  3. 3 Whether the current legislative and regulatory scheme is under-inclusive or ultra vires

Ratio Decidendi

Section 186(2) of the Social Welfare Consolidation Act 2005 is permissive and confers discretion on the Minister for Social Protection to make regulations varying the means test or rate for carer's allowance. There is no statutory obligation to make such regulations. The failure to legislate under s.186(2) is not unlawful, unconstitutional, or ultra vires. The current scheme is prescribed by primary legislation and does not violate constitutional or ECHR rights.

Court Disposition

application refused

Orders

  • No order of certiorari granted
  • No declarations of unlawfulness or unconstitutionality issued