27
June 1997
COSTELLO
P: INTRODUCTION.
This
application for an order of certiorari relates to the applicant's claim that he
is entitled to a contributory old age pension, a claim denied by the Department
of Social Welfare. He was born on the 30 September 1926 and so became 66 on the
30 September 1992. His claim to a pension was turned down by the Deciding
Officer and on appeal by an Appeals Officer. He appealed further to the Chief
Appeal's Officer who again ruled against him. It is that ruling which is the
subject of these proceedings. It is claimed that the Chief Appeal's Officer
failed to comply with the principles of natural and constitutional justice and
basic fairness of proceedings. There is, however, a second issue in the case.
The applicant claims a declaration that the Appeal's Officer and the Minister
are estopped from refusing to grant him the pension by virtue of a letter
written by the Department on the 13 April 1987 in response to an enquiry made
by the applicant as to his entitlement to a pension, a letter which, it is
claimed, represented that on his retirement in 1992 he would have sufficient
Social Insurance to entitle him to obtain a pension. I will defer for the
moment the estoppel issue and the alternative issue that the applicant is
entitled to the pension by virtue of the doctrine of legitimate expectation and
concentrate on the claim for an order of certiorari.
THE
FACTS.
(1)
As I have said, the applicant was born on the 30 September 1926. In or about
the years 1944-1945 (when the applicant was aged approximately 18) he started
working for the Golden Quay Company Ltd and he claims paid Social Insurance at
that time, his Social Insurance number was 861881 and his earnings were 12
shillings and 6 pence per week. There exists in the Department records that
show stamps paid in respect of Social Insurance by the applicant for the years
1944 and 1945. His record number was 0862277G. The records are contained on a
sheet which, the Department states, was intended to cover the period 1943-1953
and this sheet shows no contributions paid after 1945.
(2)
The applicant ceased working for the Golden Quay Company Ltd and worked for a
while for his father. He then took up employment with a firm called Burgess
Galvin and Co Ltd between 1948 and 1961. He states that he paid Social
Insurance stamps during this time and that his record number was 861881/PRSI
086777G. An accountant in Burgess Galvin and Co Ltd in a letter sent to the
Department on the 4 May, 1993 wrote:
"Further
to our telephone conversation of this morning, I confirm that I joined this
company in November 1958, as an accountant, and that Mr FG Galvin was already
an employee at that time, and had been since the company had been incorporated
in 1948. I also confirm that, in the period before his resignation from the
company for which I had the responsibility for paying his salary, he was fully
covered by Social Welfare Insurance, and that the contributions were deducted
from him and stamps affixed to his card".
(3)
The Department has no records of any stamps having been made after 1945 and, in
particular, on the sheet intended to cover the period 1943-1953 there is no
record of any payments made in respect of Social Insurance. The Department
claims that had such contributions been made during that period they would have
been recorded on this sheet. The Department has searched the index of insurance
numbers in order to cover the possibility that the applicant had a further
insurance number but says that there appears to exist no further insurance
number for the applicant. As I will outline in a moment, the issue of fact in
the case is whether or not employment contributions were paid by or on behalf
of the applicant between 1953 and 1961.
(4)
In 1961 the applicant formed his own company, the Tallaght Block Company
Limited, and worked for that company as a self employed person until it ceased
trading in 1981. It is agreed that no employment contributions were made during
this period.
(5)
In 1982 the applicant commenced working for a company called the Tallaght Block
(Dublin) Limited. In 1987 he enquired from the Department whether or not he
would be entitled to an Old Age Contributory Pension or whether he would have
to purchase additional stamps to acquire the pension. By letter of the 13 April
1987 the Department stated that its records up to April 1987 showed that from
1974 to 1992 the total number of Social Insurance weeks was 437, the yearly
average of contributions was 24 and the "present personal weekly rate" of his
pension entitlement was £50.20. It is agreed that an error occurred in
this calculation as the applicant had paid no contributions between 1974 and
1981.
(6)
In the course of his application for a contributory old age pension in 1993 the
applicant had discussions with the investigation branch of the Department as
well as correspondence with the "correspondence section" of the Department in
Sligo. By letter of the 12 August 1993 the correspondence section informed him
that he had been refused a pension on the ground that "according to the
records" of the Department he started paying social insurance for the first
time on the 1 November 1982. This conclusion was, as will appear later,
incorrect. The Department stated that he did not qualify for a pension as he
should have entered into insurance before attaining the age of 56 (which would
have occurred a few weeks previously, on the 30 September). The applicant had
contested this objection and pointed to his previous employment both in 1945
and between 1948 and 1961 and his payment of social insurance in these years.
The Department apparently at that time had no record of employment
contributions in 1945/46 (they discovered the 1945/46 records later) nor in
respect of the 1948/61 period (when the applicant was in the employment of
Burgess Galvin and Co Ltd). The letter of the 12 August 1993 explained that "it
had been determined that for this period the applicants earnings exceeded the
insurable limit". These conclusions were repeated in a letter of the 12 July
1994 from the correspondence section in Sligo. This "determination" that he had
obtained wages in excess of the statutory limit and so was not insurable has
also been contested.
(7)
By letter of the 15 June 1993 the applicant appealed against the decision to
refuse him a pension and on the 28 October 1993 his solicitor wrote a further
letter by way of appeal to Mr Carroll of the Social Welfare Appeals office in
Dublin. Both applications contained a detailed submission as to why the
Department's decision was wrong and why the applicant was entitled to a
pension. Over a year later, by letter of the 8 December 1994 the application
was informed that the Appeals Officer had decided to disallow the appeal. The
reason for the decision was;
"According
to the evidence before me, the appellant has a yearly average of eleven weeks
of paid or credited social insurance between 1953 and 1992. A minimum of twenty
is required".
This,
it will be noted, was an entirely new ground for refusing the applicant a
pension.
In
relation to this determination the following points are to be noted;
(a)
The refusal was based on a failure to meet an average yearly contributions from
1953 of at least 20, not on the grounds that the applicant had not entered into
insurable employment before his 56 birthday.
(b)
It is clear, from correspondence referred to in the next paragraph, that the
calculation of the yearly average was based on contributions made from 1982
(when the applicant was employed by the Tallaght Block (Dublin) Limited) and
the appeal officer impliedly found that there had been no contributions made
whilst the applicant was in the employment of Burgess Galvin and Co Ltd between
1948 and 1961.
(8)
After the decision of the 8 December 1994 further correspondence took place
between the applicant's solicitor and the Appeals Office. By letter of the 30
June the Correspondence section wrote enclosing a copy of the applicant's
insurance record. This showed employment contributions made since 1953.
According to this record the first contributions were made in 1982/3 and the
total of 415 contributions were made from that date. On the 10 October 1995 the
applicants solicitor wrote to Chief Appeals Officer pursuant to the provisions
of S 300(4) of the Social Welfare Act, 1981 requesting him to "overturn" the
decision of the 8 July 1984. In a reply of the 14 February 1995 he was informed
that the Chief Appeal's Officer considered that the decision of the 8 December
1994 was not erroneous by reason of some mistake having been made in relation
to the law or the facts. In the course of this letter it was pointed out that
the Department's records showed that the Appeals Officer had in his possession
records which showed that the applicant had made social insurance contributions
in 1944/45, that he had made none subsequently until 1982, and that there were
415 contributions recorded in the period 1981/82 to 1991/92. After further
correspondence the applicants solicitor was informed by letter of the 25 April
1966 that after further investigation;
"the
Department is satisfied that its files accurately reflect the position with
regard to Mr Galvin's Social Insurance record".
The
statement in the letter of the 14 February, 1995 that the Department's records
confirm the applicants claim that the applicant had entered insurable
employment in 1945/46 and had paid contributions at that time is a
contradiction of the letters of the 12 August 1993 and 12 July 1994. It also
explains why the Appeals Officers refusal was based on grounds different to
that of the Deciding Officer, in which the Department maintained that the
applicant entered into insurable employment in 1982. The records of the
Department clearly established that the applicant had entered into insurable
employment as a young man of 18, long before his 56 birthday.
(9)
By order of the 13 May 1996 leave to institute these proceedings by way of
judicial review was granted. A notice of motion claiming relief was issued on
the 10 June 1996 and thereafter the applicant and the respondent filed
affidavit evidence. (It is agreed between the parties that the claim relates to
the decision of the Chief Appeal's Officer contained in the letter of the 14
February 1996 (see paragraph 12 of applicant's affidavit and paragraph 3 of
affidavit of Appeals Officer) and not a decision of the 25 April, 1996 as
stated in paragraph 2 of the applicant's "Statement".)
THE
LAW.
It
is agreed that the relevant statutory provisions are now to be found in the
Social Welfare (Consolidation) Act 1993.
Section 83(1) of that Act provides
that a person shall be entitled to Old Age Contributory Pension if he has
attained pensionable age and satisfies the contribution conditions in
section
84.
Section 84(1) provides that the contribution conditions for Old Age
(Contributory) Pension are;
"(a)
subject to sub-section 2, that the claimant has entered into insurance before
attaining the age of 56 years.
(b)
that the claimant has qualifying contributions in respect of not less than 156
contribution weeks since his entry into insurance, and
(c)
that the claimant has a yearly average or in the case of a person who attains
pensionable age on or before the 6 April, 1992, an alternative yearly average
of not less than 48".
The
phrase "yearly average" is defined in
section 83(2) as meaning;
"The
average per contribution year of contribution weeks in respect of which that
claimant has qualifying contributions voluntary contributions or creditive
contributions in the period commencing either --
(a)
on the 5 January 1953 in case the claimant is a man . . . or
(b)
at the beginning of the contribution year in which the claimant's entry into
insurance occur (if after the 5 January 1953) in the case of a man . . .
(whichever
is the later) and ending at the end of the last complete contribution year
before the date of his attaining pensionable age."
This
means that for the purpose of ascertaining the "yearly average" referred to in
section 84(1)(c) only contributions made after the 5 January 1953 are to be
taken into account, even if the claimant had entered into insurance before that
date.
Sub-section
6 of
section 84 permits the Minister to make regulations from the modification
of the meaning of "yearly average". Such modification was made by statutory
instrument SI 417 of 1994. Article 38 of that statutory instrument provides
that the yearly average of contribution must not be less than 20, otherwise no
pension is payable.
It
is agreed that the statement of law contained in the Department's letter of the
12 July 1994 to the applicant's solicitor is correct. In that letter the
Department pointed out that Social Insurance paid prior to 1953 may be used to
determine whether a claimant had entered into insurance before reaching the age
of 56 and for the purpose of meeting the condition that a claimant must have
not less than a 156 contribution weeks since entering into insurance but that
Social Insurance paid prior to 1953 is not counted to satisfy the yearly
average referred to in
section 84(1)(c). The consequence is that;
(a)
The applicant having paid Social Insurance in 1944/45 had shown that he had
entered into insurance before attaining the age of 56 and so met the
contribution conditions of
section 84(1)(a).
(b)
The claimant had made not less than 156 qualifying contributions since his
entry into insurance and so met the conditions stated in
section 84(1)(b).
(c)
Thus, the issue in this case becomes clear. The calculation of the "yearly
average" for the purpose of
section 83(1)(c) was correctly made from the 5
January 1953. If, as alleged by the claimant, the claimant has paid qualifying
contributions between 1948 and 1961 then his yearly average from 1953 would
exceed 20 and he would meet the requirements of
section 84(1)(c) (as modified).
But if, as the Department alleges, no contributions were paid in that period
and the yearly average has to be reckoned only from the claimant's employment
with the Tallaght Block Company (Dublin) Limited from the 1 November 1982 then
because of non-compliance with
section 84(1)(c) the claimant is not entitled to
the pension.
Section
47(2)(a) provides that a "Deciding Officer" shall decide a question in relation
to a claim for benefit.
Section 257 provides that any person dissatisfied with
a decision given by a Deciding Officer may appeal to the Chief Appeal's Officer
so that the question can be referred to an "Appeal's Officer". By
section 258
the Appeal's Officer has power to take evidence on oath and to administer oaths
to persons attending as witnesses at such hearing.
Section 263 empowers the
Chief Appeal's Officer to;
"Revise
any decision of an Appeal's Officer, if it appears to him that the decision was
erroneous by reason of some mistake having been made in relation to the law or
the facts".
It
is the decision of the Chief Appeals Officer to the effect that the Appeals
Officer did not err which is the subject of this application.
THE
ISSUES.
(a)
The claim for an order for certiorari.
The
applicant's case on this issue can be stated as follows. It is submitted that
there was a breach of the provisions of the rules of natural/constitutional
justice in that the Minister failed to give the applicant an oral hearing (a
request for which had been made in the letter of the 19 July 1994). It is
submitted that there was uncontradicted evidence that the applicant had paid
insurance contributions between 1948 and 1961, that the applicant's evidence in
this regard was supported by the independent evidence of the accountant in the
firm in which the applicant was employed, that the Appeals Officer erred in
concluding that the absence of departmental records of such payment meant that
they had not been made. It was submitted that the only way in which the dispute
which had arisen could be resolved was by an oral hearing at which the
applicant could give oral evidence and that he should be at liberty to
cross-examine the witnesses called on behalf of the Minister as to the relevant
departmental records. The applicant had a right to an oral hearing, and this
right is denied by the Appeals Officer and the Chief Appeals Officer.
The
respondent's case is that the Appeals Officer did not act in any way ultra
vires, that he was entitled to decide that the departmental records were
reliable and make his decision on them and that any decision as to which piece
of evidence to accept was one for the Appeal's Officer and cannot be reviewed
by this court. He acted, it is said, at all times within jurisdiction and an
order for certiorari does not lie.
My
conclusions on this dispute are as follows;
(a)
There is one peripheral issue to which I should firstly refer.
In
the letter of the 12 August 1993 it was stated that the Department had
investigated the contention that the applicant had been employed during the
period 1948/1961 and stated that it had been "determined that the applicant's
earnings during this period exceeded the insurable limit". This statement was
repeated in a letter of the 12 July 1994. It transpired at the hearing that the
Department had no records of any sort relating to the applicant for the years
1948/1961 and that the "determination" that his wages exceeded the insurable
limit was an inference drawn by the Deciding Officer. I do not think he was
entitled to draw such an inference. The issue was whether contributions were
paid and on the one hand the applicant claimed that they had been and on the
other there were no departmental records of payments having been received.
There was no evidence on which the Deciding Officer could infer why no
contributions were made. But this error does not entitle the applicants to an
order of certiorari as it was made within jurisdiction. I draw attention to
this aspect of the case merely to point out that the dispute between the
parties is whether the applicant and the accountant in the firm which employed
him (Mr Higgins) are correct in saying that employment contributions were made
between 1948 and 1961.
(b)
The statute gives a discretion to the Appeals Officer to hold or not to hold an
oral hearing. It is, of course, well established that where a decision-maker
exercises statutory power in breach of the rules of natural/constitutional
justice then the court will quash the decision. In this case the issue is
whether the rules of natural justice were breached in that fair procedures
required that an oral hearing should have been held to determine the dispute
which I have identified.
(c)
There are no hard and fast rules to guide an Appeals Officer or, on an
application for judicial review, this court, as to when the dictates of
fairness require the holding of an oral hearing. The case (like others) must be
decided on the circumstances pertaining, the nature of the inquiry being
undertaken by the decision-maker, the rules under which the decision-maker is
acting, and the subject matter with which he is dealing and account should also
be taken as to whether an oral hearing was requested. In this case there is no
doubt that an important right was in issue (that is the applicant's right to a
pension for life); The statute gives an express power to hold an oral hearing
and to examine witnesses under oath; a request for an oral hearing was made.
What I have to decide is (as Keane, J had to decide in the the State (Boyle) v
The General Medical (Payments) Board ([1981] ILRM 14) is whether the dispute
between the parties as to (a) the reliability of the evidence before the
Appeals Officer of the applicant and Mr Higgins on the one hand and (b) the
accuracy of the departmental records on the other made it imperative that the
witnesses be examined (and if necessary cross-examined) under oath before the
Appeals Officer.
(d)
I have come to the conclusion that without an oral hearing it would be
extremely difficult if not impossible to arrive at a true judgment on the
issues which arose in this case. I do so because of the accumulative effect of
the following considerations;
(i)
The relevant period which the Appeals Officer was required to consider began
nearly 50 years ago and finished about 36 years ago. The possibility that the
records for a period so long ago were mislaid, or misfiled or destroyed is much
greater than if the relevant period is of more recent date.
(ii)
Different officers in the Department made two different errors in this case
based on the Department records and this is evidence of the fallibility of the
records available to them. Firstly, it was stated in the Department's letter of
the 13 April, 1987 that the applicant's contributions began in 1974 -- this was
manifestly incorrect as in this year and for some years later the applicant was
self employed. Secondly, it was stated in the letter of the 12 July, 1994 that
"according to the records of the Department" the applicant "started paying
social insurance for the first time on the 1 November, 1982". It is now agreed
that this statement is incorrect and it is now agreed that there are
departmental records which show that the applicant paid social insurance in
1945.
(iii)
To resolve properly the dispute in this case required an assessment of the
strength of the case adduced on behalf of the applicant. The evidence suggests
that under the rules of procedure followed by the Appeals Officer (and the
Deciding Officer before him) no such assessment was made. In the letter of the
20 April 1995 it was stated that "only contributions recorded by the Department
of Social Welfare may be taken into account in assessing pension entitlement".
This means that the Department operated a rule or policy that if employment
contributions for a given period are not found in the departmental records
claims based on allegations that contributions were made in that period are in
practise automatically disallowed. As Kelly, J pointed out in Mishra v Minister
for Justice [1997] IR 189 care must be taken that a rule or policy does not
disable a decision-maker from exercising a discretion in individual cases.
Whilst such a rule could be applied in perhaps a majority of cases by the
Department there must be some (and the present is such a one) that requires
consideration to be given to evidence adduced on an applicants behalf with a
view to weighing it against the evidence touching on the reliability of the
Department's records. This apparently was not done in this case; having found
no records for contributions made between 1948 and 1961 the claim was
disallowed. If the conflicting evidence was weighed, it is possible that the
discretionary power to hold an oral hearing would have been exercised in the
applicants favour.
(iv)
To resolve the dispute in this case the Deciding Officer should have assessed
the evidence adduced on the applicant's behalf. There is no evidence to suggest
that the applicant is wrong in stating that he was employed in Messrs Burgess
Galvin from 1948 to 1961 and this firm is still in existence. An assessment has
to be made as to the likelihood that during the period 1948 to 1961 his cards
were not stamped. Whilst, of course, it is possible they were not there is a
stronger possibility that an employee between the ages of 22 and 35 (as the
applicant was in the relevant period) would have his cards stamped during this
period as the law required.
The
conclusion which I have reached is that the conflict between the parties cannot
be properly resolved in the absence of oral testimony. I conclude that the
Appeals Officer should have conducted an oral hearing, that he should have
heard the evidence under oath of the applicant and, if available, Mr Higgins
and that he should have heard the evidence from the Officer in the Department
responsible for searching the departmental records who should have been
available to cross-examination. I will hear submissions (as the matter was not
discussed at the hearing before me) as to whether the applicant should be
represented by his solicitor. It follows, therefore, that the Chief Appeals
Officer erred in holding that no error of law had occurred on the hearing of
the appeal and that I should quash the order which he made. The proper
determination was that the applicant's appeal should be re-heard by an oral
hearing.
I,
of course, express no opinion as to how that appeal should be decided. But
there should be no delay in holding this appeal and in my view priority should
be given in the Department to it. I can see no reason why the arrangement for
the oral hearing should not be made within 4 weeks should this judgment not be
appealed and that a decision of the hearing announced within 4 weeks
thereafter. I also consider that should there be an appeal by the applicant to
the Chief Appeals Officer this appeal should also be heard within about
approximately 4 weeks. If there is any delay in arranging for the holding of a
further oral hearing (or an appeal from it) this matter can be re-entered for
mention before me, if necessary during the Long Vacation, to consider what
further orders are required.
(b)
Estoppel/Legitimate Expectation.
A
second issue was raised in these proceedings by the applicant based on the
doctrine of estoppel and/or legitimate expectation. He claimed a declaration
that the Minister is estopped from refusing to grant the applicant a pension by
virtue of the contents of a letter written by an official of the Department on
the 13 April 1987 in response to an enquiry made by him as to his entitlement
to an old age pension. He states that it was represented to him that at his
then rate of contribution to the date of retirement in 1992 he would have
sufficient social insurance to entitle him to a pension from the 30 September,
1992. In support of this claim the applicant states that as he was informed
verbally and by letter that he did not need to purchase additional stamps in
order to qualify for a pension he relied on this assurance and did not purchase
additional stamps which would have entitled him to a pension.
It
is to be noted that the claim is not that the Respondents are estopped from
denying a procedural right to the applicant (a right to an oral hearing) but
that they are estopped from denying a substantive benefit to the applicant (a
pension). It will be clear from the order I propose making that I do not think
that I can agree with the applicant's contention and I should briefly explain
why.
(I)
ESTOPPEL.
The
letter of the 13 April 1987 begins by referring to the applicant's enquiry
about entitlement to old age contributory pension, it points out that to
qualify for a pension a weekly average of at least 20 weeks social insurance is
needed during the period from 1953 or from the date he started paying insurance
if this was after 1953, it sets out the calculations made from the Department's
records and treat the "yearly average period" as being from 1974 to 1992. It
estimates that the total number of weeks social insurance during that period is
437 and that the yearly average is 24 thus entitling the applicant at present
weekly rates to £50.20p pension per week. It is clear that two errors were
contained in this letter as it is common case that the applicant was not making
any insurance contributions in 1974. Secondly, as he had made contributions in
1945 the years average should be calculated from 1953.
The
applicant's case is that (a) this letter (confirming a verbal conversation)
amounts to a representation that he would be entitled to a pension on
retirement (b) that he suffered a detriment as a result of this representation
in that he did not purchase any additional stamps which would have enabled him
to have qualified for a pension had the true he been informed of the true
position and (c) the Minister cannot now resile from the representation that he
is entitled to a pension.
The
respondents accept that an error was contained in the letter of the 30 April,
1987 and do not deny that it amounted to a representation but argue that the
doctrine of estoppel does not apply because (a) the applicant suffered no
detriment arising from the representation as he could not have made any further
contributions under the Social Welfare Acts and (b) the doctrine cannot confer
a right on the applicant to which he is not statutorily entitled.
I
find myself in agreement with the respondents submissions.
Firstly,
the applicant made the enquiry five years after he had ceased to be self
employed and at a time when he was obliged by law to make certain statutory
weekly contributions which he, in fact, made. There is no statutory provision
which would permit the applicant to pay increased weekly contributions from
1987 so as to entitled him to a contributory old age pension and there are no
statutory provisions which would have enabled him to have, retrospectively,
made voluntary contributions for the period during which he was self employed.
Thus, the applicant has not shown that he suffered any detriment as a result of
the representation on which he relied.
Secondly,
the doctrine of estoppel has no application where the applicant is not entitled
by statute to the benefit claimed. This was made clear in In Re: Greendale
Building Company [1977] IR 256. In that case the plaintiff sought to rely on a
notice served under the
Housing Act 1966 and argued that the housing authority
should be estopped from relying on its invalidity because it had represented
that it had been validly served and the company had relied on the validity of
the representation. The Supreme Court held that the doctrine of estoppel did
not apply because it would destroy the doctrine of ultra vires if the donee of
a statutory power could extend the power by creating an estoppel. This case has
been followed by several authorities in this jurisdiction (Dublin Corporation v
McGrath [1978] ILRM at 208, Devitt v Minister for Education [1989] ILRM at 639
and Nolan v Minister for Environment [1989] IR 357). The present case is not a
case in which a public official has given an assurance that a statutory
discretion will be used in a certain way -- it is a case in which it is said an
erroneous statement as to a statute right namely, the right to a pension, was
made. Such a statement cannot preclude the Minister from arguing (a) that it
was wrongly made and (b) the law does not permit the payment of the benefit
claimed.
(II)
Letimate Expectation.
The
doctrine of legitimate expectation (developed since the early 1970's) is
closely connected to the doctrine of estoppel but it is not identical with it.
There are cases in England which indicate that an applicant for judicial review
may rely on an expectation legitimately held by him even though he did not act
to his detriment. But these cases do not assist the applicant here because the
doctrine of legitimate expectation, like the doctrine of estoppel, cannot be
relied on to support a claim that the respondent cannot be heard to submit that
the law does not permit the payment of the benefit claimed.
I
must therefore disallow the claim based on estoppel and/or legitimate
expectation.
