Judicial Review - Pension entitlements - Decision of officer to refuse entitlement - Appeal - Certiorari - Natural and constitutional justice - Fairness of proceedings - Necessity of oral hearing - Representations - Estoppel - Whether payments permitted under law - Legimitate expectation - Social Welfare (Consolidation) Act 1993 (No 27), sections 83, 84, 47(2)(a), 257, 258 and 263; SI 417 of 1994, article 38.
The High Court (before Mr Justice Costello); judgment delivered 27 June 1997.
Where a factual dispute arises which throws doubt on the accuracy of departmental records, and the dispute relates to particular years since which a substantial period of time has elapsed, in circumstances where the fallibility of the same records has been highlighted already, then it is imperative the matter be resolved by oral hearing. The High Court so held in acceding to the application and granting an order of certiorari on the grounds that the rules of fair procedures were breached and directing that the appeal be reheard this time by oral hearing. The claims based on estoppel and legimitate expectation were disallowed.
Ciaran O'Loughlin SC and Anthony Hunt BL for the applicant; Patrick F. O'Reilly BL for the respondents.
Mr Justice Costello said that the applicant had obtained leave of the court to institute judicial review proceedings and by notice of motion issued on 10 June 1996 claimed relief by way of certiorari. The facts of the case were that the applicant who was born on the 30 September 1926 claimed he was entitled to a contributory old age pension. His claim was turned down by the deciding officer and on appeal by an appeals officer. A further appeal to the chief appeals officer was turned down and the applicant sought an order of certiorari in relation to that decision claiming the chief appeals officer failed to comply with constitutional justice and basic fairness of proceedings. The applicant also relied on the doctrines of estoppel and legitimate expectation.
The applicant first paid social insurance in or about the years 1944-1945 and department records show stamps paid by the applicant for that period. However, the applicant contended that while he was in the employment of a company called Burgess Galvin & Co Ltd during the years 1948-1961 he also paid stamps. An accountant with the firm who was responsible for paying his salary during the period 1958-1961 wrote a letter to the Department dated 4 May 1993 saying that while the applicant was with that firm he was fully covered by Social Welfare Insurance and that the contributions were deducted from him and stamps affixed to his card. The Department said that it had no record of any stamps being paid by the applicant after 1945. Such payments would have been recorded if made, according to the Department.
It was agreed between the parties that while the applicant was self-employed during the years 1961-1981 no employment contributions were made by him. In 1982 the applicant commenced working for another company and in 1987 made inquiries from the Department in relation to his entitlement to an old age contributory pension. The applicant was concerned whether he would have to purchase additional stamps to acquire the pension. By letter dated 13 April 1987 the Department replied that he was so entitled. However, it was agreed between the parties that there was an error in the calculations contained in that letter.
The applicant applied for a contributory old age pension in 1993. By letter dated 12 August 1993 the correspondence section of the Department informed him that he had been refused on the grounds that the records showed he had started paying stamps on 1 November 1982 and as he had not entered into insurance before attaining the age of 56 he did not qualify. The applicant contested this objection. The Department apparantly had no records relating to the periods 1944-45 and 1948-1961. A further letter from the correspondence section of 12 July 1994 repeated the earlier conclusions that the applicant's earnings for that period exceeded the insurable limit. That determination was also contested by the applicant.
Mr Justice Costello said that the applicant appealed against the decision on 15 June 1993 and by way of a further letter of 28 October 1993. On 8 December 1994 he was informed that the appeals officer had decided to disallow the appeal on the grounds that the applicant had a yearly average of paid social insurance below the minimum of twenty which was required. This was an entirely new ground for refusing him a pension and the appeal's officer impliedly found that no contributions were made during the period 1948-1961. The applicant's solicitor by letter requested the chief appeals officer to overturn the decision of 8 December 1994. By way of reply on 14 February 1995 the applicant was informed the chief appeals officer did not consider the decision of the 8 December 1994 erroneous in law or in fact.
Mr Justice Costello said that the issue of fact in the case was whether or not employment contributions were paid by or on behalf of the applicant between 1953 and 1961. Section 84(1) of the Social Welfare (Consolidation) Act 1993 sets out the contribution conditions for the old age contributory pension. Subs-section (a) requires that a claimant must have entered into insurance before attaining the age of 56 years. The claimant must also have qualifying contributions in respect of not less than 156 contribution weeks since his entry into insurance and a yearly average of not less than 48 weeks. Section 83(2) provides that for the purposes of ascertaining the ["]yearly average["], only contributions made after 5 January 1953 are taken into account. By virtue of article 38 of SI 417 of 1994 the yearly average of contribution was amended to not less than 20, otherwise no pension was payable.
Mr Justice Costello said that as the applicant met the first two conditions it was a matter of deciding whether his yearly average since 5 January 1953 exceeded 20. Hence, it became crucial whether the applicant had paid contributions for the period 1948-1961 as he contended and the Department denied. The procedure laid down by the Act provided that a decision taken by a deciding officer may be appealed to a chief appeals officer and by virtue of section 258 of the Act the chief appeals officer may hear oral evidence on oath and revise any decision of an appeals officer. It was the decision of the chief appeals officer that was the subject of the application before the court. Mr Justice Costello said it was submitted on behalf of the applicant that by failing to give him an oral hearing the minister breached the rules of natural and constitutional justice. There was uncontradicted evidence that the applicant had paid contributions during the years 1948-1961 which was supported by the independent evidence of the accountant of the firm which employed him for that period. The appeals officer erred in concluding that the absence of departmental records to that effect meant that such payments were not made. Such a dispute could only be resolved by hearing oral evidence and affording the parties to cross-examine witnesses. The applicant's right to an oral hearing was denied him by the appeals officer and the chief appeals officer. The respondent contended that it was for the appeals officer to decide what evidence to accept or reject and he was entitled to decide that the departmental records were reliable. The appeals officer had acted at all times within his jurisdiction, he had not acted ultra vires and an order for certiorari did not lie.
Mr Justice Costello referred to the conclusion of the deciding officer contained in the letter of 12 August 1993 that the reason why no contributions were made for the crucial period of 1948-1961 was that the applicant's earnings exceeded the insurable limit. While he was not entitled to draw such an inference on the evidence, the court was of the view that it did not entitle the applicant to an order of certiorari as it was made within jurisdiction. The dispute between the parties was concerned with whether payments were made by the applicant during that period.
Mr Justice Costello said that the appeals officer had a discretion to hold or not to hold an oral hearing and the question which arose was whether the rules of natural justice required that an oral hearing be held. In deciding whether to hold such an oral hearing an appeals officer must have regard to all the circumstances including whether an oral hearing was requested. The question which fell to be decided by the court was whether the dispute between the parties as to the reliability of the evidence and the accuracy of the departmental records made it imperative an oral hearing be held.
Mr Justice Costello concluded that without an oral hearing it would be impossible to resolve the dispute. The fact that the period in question was so long ago was a relevant consideration as there was a possibility some records could have been destroyed or mislaid. The fallibility of the records available to the various officers had been highlighted by both the letters of 13 April 1987 and 12 July 1994. The strength of the applicant's case should have been assessed by the deciding officer and the appeals officer. It appeared the Department disallowed all claims that contradicted the records. Mr Justice Costello referred to the judgement of Mr Justice Kelly in Mishra v Minister for Justice [1996] 1 IR 189 saying that policy should not disable a decision maker from exercising a discretion in individual cases. Some cases require that the evidence adduced on an applicants behalf be weighed against the evidence which may cast doubt on the reliability of departmental records. This in the court's view was such a case. The evidence as to the likelihood of the applicant's card not having been stamped during that period should have been assessed.
Mr Justice Costello said that the conflict between the parties could not be resolved properly in the absence of oral testimony from, and cross-examination of, the applicant, the accountant and department researchers responsible for checking the records. The chief appeals officer erred in holding that no error of law was made on the hearing of the appeal and accordingly the applicant was entitled to an order of certiorari quashing that decision. The court directed that the appeal should be reheard by an oral hearing without undue delay.
Mr Justice Costello then dealt with the claim of estoppel. By letter of the 13 April 1987 the requirements necessary to qualify for an old age contributory pension were set out to the applicant and that letter informed him that he was entitled to a weekly pension. However, two errors were made in the calculations contained therein. The applicant submitted to the court that as that letter amounted to a representation that he would be entitled to a pension in the future, the minister could not now resile from that representation. Furthermore, it was contended that the applicant had suffered detriment as a result of this representation as he did not purchase any additional stamps which would have enabled him to qualify for a pension. He would have done so had he been informed of the true position.
Mr Justice Costello agreed with the submissions made on behalf of the respondents. The applicant at the time was making the statutory contributions and there was no provision whereby he could have made increased contributions or voluntary contributions retrospectively to cover the period during which he was self-employed. Hence, the applicant had not shown that he had suffered any detriment as a result of the representations contained in the letter of April 1987.
In relation to the doctrine of estoppel, Mr Justice Costello said it had no application where there was no entitlement by statute to the benefit claimed. The court referred to the case of In Re Greendale Building Company [1977] IR 256 where 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. In this case an erronous statement as to a statute right was made and the minister was not precluded from arguing that the statement was wrongly made or that the law does not permit the payment of the benefit claimed.
Mr Justice Costello disallowed the claim based the doctrine of legitimate expectation saying it could not be relied upon to prevent the respondents from contending that the law does not permit the payment of the benefit claimed.
Solicitors: Denis I. Finn (Dublin) for the applicant; Chief State Solicitor for the respondents.