Social Welfare - Family Income Supplement - Supplement applying to persons in full-time remunerative employment - Definition of such a person - Exclusion of participants in scheme administered by FAS - Whether plaintiffs eligible under that definition - Whether their exclusion as participants in FAS scheme a valid exercise of defendant's regulatory power - Social Welfare (Family Income Supplement) Regulations (SI 279 of 1991), articles 7 and 22 - Social Welfare (Consolidation) Act 1981 (No. 1), section 35.

Delegated legislation - Whether regulations were intra vires the defendant.

The High Court (before Miss Justice Carroll); judgment delivered 5 October 1998.

THE regulation whereby the defendant decided that in order to qualify for Family Income Supplement, an applicant must be engaged in full-time remunerative employment for a minimum of twenty hours each week, was intra vires the defendant since it was a matter of detail filled in by the defendant so as to give effect to the principles and policies contained in the Act. The plaintiffs were not eligible for the supplement since they had worked for forty hours on alternate weeks.

Miss Justice Carroll declared the regulations to be intra vires the defendant and refused the plaintiffs' claim for payment of the supplement with interest.

Paul Walsh SC and John McGuiggan BL for the plain- tiffs; James O'Reilly SC and Gerard Hogan SC for the defendant.

Miss Justice Carroll said that the plaintiffs' claim was that they were entitled to Family Income Supplement (FIS) while employed on a Social Employment Scheme (SES). The first plaintiff had been unemployed since 1983 and had been recruited for a SES by Wicklow County Council at various periods between 1991 and 1994. The second plaintiff had been unemployed since 1988 and was employed on a SES from 1990 to 1991.

The terms of the SES were that the plaintiffs were required to work 40 hours every alternate week, but were paid each week for 20 hours. Both plaintiffs applied for FIS and were refused because they were engaged in an SES. The reasons given were that the supplement was paid to employees who were normally engaged in full-time remunerative employment. Persons participating in the SES were not deemed to be normally employed since the purpose of the SES was to allow unemployed people an opportunity of engaging in part-time employment. The rates of pay were determined by reference to the rate of unemployment assistance and the participants were free to take up further employment. On an inquiry by their solicitor, the Department of Social Welfare informed them that to be regarded as being engaged in full-time remunerative employment, they must work for a minimum of 20 hours each week, whereas the plaintiffs were working for 40 hours every second week.

Miss Justice Carroll said that the SES was launched as one of a number of initiatives designed to reintegrate the long term unemployed into the labour force. There was flexibility in the work periods so as to suit the individual projects and no individual worked more than 40 hours per week. Participants had the opportunity to seek other work and were encouraged to look for full-time regular employment. Most of the projects related to the arts or to community development. Payment was in excess of unemployment benefit and participants could not claim this benefit for the week they were not working.

FIS was a weekly cash payment to help families at work on low pay. The statutory entitlement to FIS was contained in Part IV A of the Social Welfare Act 1981 as inserted by section 13 of the Social Welfare Act 1984. Section 232A defined "family" as a person who is engaged in remunerative full time employment as an employee, together with his spouse and children.

Pursuant to section 232F, the minister was given the power to make regulations so as to determine the circumstances in which a person should be regarded as being engaged in remunerative full time employment as an employee.

Pursuant to the power in section 232F, the minister brought into operation the Social Welfare (Family Income Supplement) Regulations (SI 278 of 1984). Article 5 (insofar as it was relevant to the plaintiffs' case) provided "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 . . ."

Article 5 was amended by way of substitution on number of occasions. From 27 July 1989, the requirement could be satisfied where a person was "normally engaged in remunerative employment and he or his spouse are so engaged for an aggregate of not less than 20 hours a week . . ."

The definition was changed again the following year by the Social Welfare (Family Income Supplement) (Amendment) Regulations (SI 189 of 1990). On this occasion, the definition extended to a person who was "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 . . ."

All of these regulations were revoked by the Social Welfare (Family Income Supplement) Regulations (SI 279 of 1991) which re-enacted the latter definition in article 7. Article 22 of the 1991 Regulations provided that certain statutory provisions, in the modified form provided in Schedule A to the Regulations, would apply to the Family Income Supplement.

The relevant provision was section 35 (2A) of the Social Welfare Act 1981. In its modified form, it provided that "[a] person shall be disqualified from receiving supplement during any week in which he is employed under a Scheme administered by FAS and known as the Social Employment Scheme."

The plaintiffs claimed that the decision to refuse their application for the supplement was ultra vires, that the refusals were in violation of natural and constitutional justice, that the SES constituted employment within the meaning of the Social Welfare Acts, that the provisions of the 1991 Regulations insofar as they operated to disqualify a person from FIS during any week in which he was employed under a scheme administered by FAS was ultra vires the defendant.

They did not claim that the definition in article 5 of the various regulations, or article 7 of the 1991 Regulations, was ultra vires as it was on this provision that their claim was based. They claimed payment of the FIS with interest.

The defendant pleaded that the plaintiffs were not engaged in remunerative full time employment as defined by the regulations. The defendant submitted that he had power to define the circumstances in which as person should be regarded as being in remunerative full time employment as an employee and that the regulations were intra vires.

Miss Justice Carroll referred to Cityview Press v AnCO [1980] IR 381 where the then Chief Justice, Mr Justice O'Higgins, said that the test for the validity of delegated legislation was whether the regulations in question were "more than a giving effect to principles and policies which are contained in the statute itself." She also referred to the dicta of Mr Justice Henchy, in Cassidy v Minister for Industry and Commerce [1978] IR 297, at 310, to the effect that the power to issue subordinate legislation was one which must be exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation. It was a necessary implication in a statutory delegation that the power should be exercised reasonably. Miss Justice Carroll also referred to Cooke v Walsh [1984] IR 710, Harvey v Minister for Social Welfare [1990] 2 IR 232 and Kenny v Minister for Social Welfare [1986] IR 693.

Miss Justice Carroll said that the provision in article 5 of the various past regulations, as re-enacted in article 7 of the 1991 Regulations, was intra vires as a detail filled in by the defendant so as to give effect to the principles and policies contained in the legislation. It was clear in its effect, requiring 20 hours work each week and not an average over a fortnight. It therefore did not apply to the defendants.

In the light of that finding, it was not necessary to consider the legality of article 22 of the 1991 Regulations.

Solicitors: Breda Allen & Company (Wicklow) for the plaintiffs; Chief State Solicitor for the defendant.