Monday, March 06, 2023

High Court reporters

A 96-year-old woman wants the High Court to compel the Minister for Social Protection to introduce regulations that could enable her to receive the non-contributory State pension.

The court heard widow Eileen Hackett, of Walkinstown, Dublin, has been refused the means-tested pension payments due to her late husband leaving savings of about €170,000 when he died in 2014.

Ms Hackett, who says she had no prior knowledge of the funds left in various bank accounts, accepts this was not declared to the Department of Social Protection, but she has since spent the money and gifted some €80,000 to her children and grandchildren, according to her legal papers submitted to the court.

Her pension would have been stopped had she notified the department upon discovery of the sums. She says her case was reviewed in 2018 and, in December 2019, she was informed pension payments would immediately cease.

It was determined that the department overpaid her just under €80,000, with an appeals officer holding that her means going forward were to be calculated on the basis that she had gifted €115,000 to family members “in order to receive a higher pension rate”.

The Social Welfare (Consolidation) Act of 2005 stipulates that if a person deprives themselves of assets in order to qualify for a pension or increased pension those assets shall be taken to form part of that person’s means.

However, income or property value that was considered as part of the means assessment that has since reduced “may be revised”, subject to certain conditions and circumstances, the Act states.

Ms Hackett reapplied for the pension in February 2022, but this was refused on grounds that her means were assessed as €115,000 which was gifted to her children, she says.

Her appeal to the Chief Appeals Officer was rejected, with the officer stating that no regulations have been made to prescribe the conditions and circumstances provided for in the 2005 legislation. In the absence of any regulation setting out these conditions and circumstances, the appeals officer was not allowed to recalculate Ms Hackett’s means, the officer held.

The woman’s counsel, Feichín McDonagh SC, with Brendan Hennessy BL, told the court on Monday that the conditions and circumstances provided for in legislation have not yet been prescribed by the Minister for Social Protection.

Mr McDonagh, instructed by Collier Law, said it was the “clear” intention of the Oireachtas that there should be in place a system for dealing with situations like this but the Minister has not yet implemented that system.

It “makes no sense” for the department to act in 2023 as though Ms Hackett still has the €115,000 in her bank account, he added.

Counsel asked for the case to return to court quickly.

Mr Justice Charles Meenan said it was an “extraordinary” situation and questioned whether others are in a similar position to Ms Hackett. Mr McDonagh said she was the first person he had come across in this situation.

The judge gave permission for the woman to pursue her action and scheduled for it to return to court later this month.

The action seeks an order compelling the Minister to introduce regulations relating to the conditions and circumstances referenced in the 2005 Act. She also wants the court to declare that the failure to introduce the regulations has frustrated the intention of the Oireachtas.

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