Digital Commons Network^™

Health Care ‘Freedom’, Medicare ‘Enrollment’ And Other Paralogisms: Hall V Sebelius, Mel Cousins

Mel Cousins

Rather overshadowed by the Supreme Court hearings on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), another case involving a claim for health care ‘freedom’ has recently been dismissed by the DC circuit court of appeals. The case is entirely without any legal interest (or indeed legal merit) and, from a purely legal point of view, is barely worth reporting. Nonetheless from a broader political science perspective, it may be worth noting. From this perspective the ongoing health care litigation (of which Hall v Sebelius is a rather peripheral part) might tend to re-establish a view of …

Farm Workers, Equal Treatment And Insurability: Griego V New Mexico Workers’ Compensation Administration, Mel Cousins

Mel Cousins

The US courts have considered a number of cases where a person has argued that his or her exclusion from insurability (either in social security, unemployment insurance or workers compensation) was in breach of the guarantee of equal protection in federal and/or state constitutions. The Social Security Act had originally entirely excluded domestic and agricultural workers. Early cases upholding the constitutionality of the Social Security Act had, inter alia, held that the exclusion of certain classes of worker from the scope of coverage did not render the legislation unconstitutional. However, these cases had not involved claims of racial, economic or …

Travellers, Equality And School Admission In The High Court: Stokes V Christian Brothers High School Clonmel, Mel Cousins

Mel Cousins

This note examines the recent Irish High Court decision in Stokes v CBS High School which concerned whether the rules for admission to the school – in particular a rule giving priority to children whose parents had attended the school - were compatible with the Equal Status Acts 2000-2008. The case concerned the fact that Mr. Stokes, a member of the Traveller community, was refused access to the school which was oversubscribed. The admission criteria included a rule whereby priority was given to children whose parents had attended the school and it was argued that this was indirectly discriminatory against …

Access To Quasi-Judicial Decisions – Jama V Minister For Social Protection, Mel Cousins

Mel Cousins

This case involves the important issue of access to the decisions of social welfare appeals officers. The Irish High Court concluded that there was no duty on the Department to maintain a database or open library of decisions to which the public may have access and, therefore, no question of a right of access thereto arose. However, it is submitted that the legal analysis of the general issue is doubtful.

Black Lung Benefits And Constitutional Challenges: The Byrd Amendments To The Black Lung Benefits Act; And The Kentucky Consensus Procedure, Mel Cousins

Mel Cousins

This note discusses two recent issues where legislation concerning benefits for coal workers affected by pneumoconiosis (black lung) was challenged under the US Constitution, including issues of due process, equal treatment and the takings clause. Congress has recently restored earlier legislation making it easier for the survivors of workers affected by black lung to qualify for federal benefits. Several courts of appeal have upheld this legislation against constitutional challenges from employers holding that it is neither in breach of the employers’ due process rights nor a taking within the meaning of the Fifth Amendment to the Constitution. In contrast, the …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits, Mel Cousins

Mel Cousins

Equal Protection, Workers Compensation And Offset Of Benefits (Again) – Caldwell V Maco Workers Compensation And Caputo V Workers’ Compensation Appeal Board (Commonwealth Of Pennsylvania)

Mel Cousins

As noted in an earlier article, one issue which has received considerable attention in terms of equal protection challenges in US courts is that concerning the offset of one type of social security benefits with worker’s compensation payments. The Supreme Court in Richardson v Belcher upheld the reduction in social security disability insurance because of receipt of a state worker’s compensation payment as rationally based and free from invidious discrimination. The Court and various federal courts of appeals have subsequently shown little interest in subjecting such offset provisions to more than a minimal level of scrutiny. State courts have also …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (September-December 2011), Mel Cousins

Mel Cousins

In the period, there was an interesting case before the European Court of Justice concerning the equal treatment Directive (79/7), while the European Court of Human Rights has given some important judgements in a number of cases on social security as a property right. Finally, the Court of Human Rights has again addressed the position as to when and why an oral hearing is required in social security cases but without greatly clarifying anything.

The Impact Of Recent Cjeu Rulings On The Presence And Residence Rules For United Kingdom Disability Benefits, Mel Cousins

Mel Cousins

This article examines a number of recent decisions of the Court of Justice of the European Union (“CJEU”) and their impact on the presence and residence rules for disability benefits, in particular the disability living allowance (“DLA”). It considers the approach which the courts may take to the export of disability benefits in the light of these recent decisions.

The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …

Travellers, Equality And School Admission: Christian Brothers High School Clonmel -V- Stokes, Mel Cousins

Mel Cousins

This note examines the recent Irish equality officer and Circuit Court decisions in CBS High School Clonmel v Stokes which concerned whether the rules for admission to the school – in particular a rule giving priority to children whose parents had attended the school - were compatible with the Equal Status Acts 2000-2008. The equality officer held that the rule was indirectly discriminatory and in breach of the Act. However, on appeal the Court held that while the rule had a disproportionate impact on Travellers, it was objectively justified.

A2 Self-Employed Workers And Social Welfare Rights - Solovastru V Minister For Social And Family Affairs, Mel Cousins

Mel Cousins

This note examines the recent decision of the Irish High Court in Solovastru v Minister for Social and Family Affairs. The case concerned the rights of a Romanian migrant worker to benefits under the Irish social welfare scheme and, in particular, (i) whether a person who requires a work permit to take up employment can be considered to be ‘available for work’; and (ii) whether the applicant was habitually resident in Ireland. This, in turn, raised the issue as to whether, under EU law, a self-employed person retains a right to reside under Article 7 of Directive 2004/38/EC in the …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (April-June 2011), Mel Cousins

Mel Cousins

In this article, we review developments in the case law of the European Court of Justice and Court of Human Rights in the period April to June 2011. In contrast to the last issue which focussed on a number of key judgments – mainly involving an interpretation of the Treaty provisions − that look likely to have an important impact on social security issues, this issue returns to the more mundane case law of the two courts on issues such as the co-ordination of social security for migrants and the application of the right to fair hearing and non-discrimination in …

R. (On The Application Of Child Poverty Action Group) V Secretary Of State For Work And Pensions, Mel Cousins

Mel Cousins

This case concerns the Secretary of State’s right to recover overpaid social security benefits. Section 71 of the Social Security Administration Act 1992 provides that overpaid benefits may be recovered where they arise from misrepresentation or non-disclosure of a material fact. As Lord Brown put it, the case raised the question as to whether s.71 provides an exclusive code for recovery of overpayments made in accordance with an award of benefit.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (July-September 2011), Mel Cousins

Mel Cousins

In this article, we consider two important decisions: one of the Court of Human Rights on the rights of prisoners which concerns access to pension insurance (Stummer); and one from the Court of Justice concerning the link between residence and social security (Stewart). On the legislative front, not much happened.

Patmalniece V Secretary Of State For Work And Pensions [2011] Uksc 11 Supreme Court, Mel Cousins

Mel Cousins

This Supreme Court decision concerns the right to reside test in UK social security law. In brief, UK law has since 1994 had a requirement that, in order to be entitled to various non-contributory benefits, one must be habitually resident in the country. In 2004 in response to the accession of a large number of new Member States to the EU, a new right to reside test was incorporated into the habitual residence test. This means that in order to be habitually resident it is necessary to have a legal right to reside in the United Kingdom. All UK citizens …

Chronic Pain, Impairment, Workers Compensation And Equality: Downey V Nova Scotia (Workers Compensation Appeals Tribunal), Mel Cousins

Mel Cousins

This note examines the issue of the treatment of chronic pain under Canadian workers compensation law in the context of the right to equality set out in s. 15 of the Canadian Charter of Rights. In the Martin case the Supreme Court of Canada ruled that the exclusion compensation for chronic pain from the general Nova Scotia worker’s compensation scheme was in breach of s. 15 of the Charter. Following this decision, Nova Scotia enacted new legislation which brought chronic pain within the general scheme but subject to a limit of the amount of compensation payable. These provisions were challenged …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (November 2010-March 2011), Mel Cousins

Mel Cousins

In this article, we review developments in the case law of the European Court of Justice and Court of Human Rights and EU legislative developments in the period November 2010 to March 2011. We focus on a number of key judgments – mainly involving an interpretation of the Treaty provisions − which look likely to have an important impact on social security issues: in particular, Test-Achats, concerning the incompatibility of secondary legislation allowing insurance products (including pension annuities) to be calculated by reference to gender-based actuarial factors, Casteels, concerning the impact of free movement on the co-ordination of occupational pensions …

The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the Health Care Reform Act (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with at least 20 different cases from both states and organizations and individuals currently under way. Although this litigation is at an early stage, there has already been considerable academic (and other) interest with a number of websites tracking the development of the litigation and providing links to the considerable commentary which has already been developed (albeit much of it inevitably speculative in nature). There have now been five substantive rulings …

The Defense Of Marriage Act (Doma), Equal Protection And State Authority – Gill V Office Of Personnel Management And Commonwealth Of Massachusetts V United States Dept Of Health And Human Services, Mel Cousins

Mel Cousins

The issue of the recognition of same-sex marriages and the constitutionality of a refusal to recognize such marriages has received considerable attention in the US state courts in the last decade. A number of state courts have ruled that, state constitutions require the recognition of same-sex marriages. However, relatively few cases had reached the federal courts and in almost all these cases the restrictions had been upheld. However, two recent challenges to a ban on same-sex marriages in California (Proposition 8) and restrictions of the rights of same-sex couples under federal law (DOMA) have now been successful before federal district …

Social Security, Modes Of Communication For Blind And Visually Impaired Persons And The Rehabilitation Act – American Council Of The Blind V Astrue, Mel Cousins

Mel Cousins

This note examines a recent District Court decision in which the plaintiffs successfully challenged the adequacy of modes of communication by the Social Security Administration in its notices and other correspondence to blind and visually impaired persons. The case shows the potential of the Rehabilitation Act to improve services to persons with disabilities.

European Policies On Land Compensation And Support For Displaced Rural Workers: Relevance To China, Mel Cousins, Zhihui Wu, Jean-Phillipe Lhernould, Malgosia Rusewicz, Simon Roberts

Mel Cousins

This report examines the position of farmers who have lost their land (or displaced rural workers) in China. It studies policies adopted in three EU countries (France, Poland and the UK) (i) to provide compensation for land which has been compulsorily purchased; and (ii) to provide social policy support to disaplaced rural workers. It draws out the possible implications of these EU experiences for China

Coal Workers’ Pneumoconiosis And Equal Protection In Kentucky – Cain V Lodestar Energy, Gardner V Vision Mining And Martinez V Peabody Coal, Mel Cousins

Mel Cousins

This note discusses a number of recent decisions of the Kentucky courts concerning coal workers pneumoconiosis and equal protection. The Kentucky Court of Appeals has recently found unconstitutional a special ‘consensus’ procedure by which coal workers affected by pneumoconiosis were required to prove their claim for workers compensation. The case is currently under appeal to the Kentucky Supreme Court.

Equal Protection, Workers Compensation And Offset Of Benefits – Merrill V Utah Labor Commission And Satterlee V Lumberman's Mutual Casualty Company, Mel Cousins

Mel Cousins

The Developing Concept Of European Citizenship: Residence And Welfare Rights In Eu Law, Mel Cousins

Mel Cousins

The developing case law on European Union citizenship has attracted much attention in recent years. One of the most important aspects of this case law has been the implications of citizenship for the right of residence and, in particular, the relationship between the right of residence and access to social security benefits. This issue is particularly sensitive because of the concerns of Member States in relation to the potential costs involved arising from greatly extended residence rights for non-nationals. This article looks at a number of interrelated issues concerning the relationship between access to social security and (rights of) residence. …

Mental Stress, Workers Compensation And Equality: Plesner V British Columbia Hydro And Power Authority, Mel Cousins

Mel Cousins

This note discusses the decision of the British Columbia Court of Appeal that restrictions on the right of a person affected by mental stress to recover compensation under the British Columbia workers compensation code were in breach of the equality provisions (s. 15) of the Canadian Charter of Rights. Although (because of the specific facts of the case) the result of the judgement was only that certain provisions of the relevant Policy (13.30) of the Workers Compensation Board were ‘read down’, the implications of the decision cast doubt on the wider restrictions on compensation for mental stress which remain in …

Benefit Overpayments, The Common Law And Human Rights, Mel Cousins

Mel Cousins

This article examines the issue of benefits overpayments in UK social security law. Current estimates put the level of overpayments due to error (as opposed to fraud) at about £2 billion per annum. Concern about his issue has led to the publication of a DWP statement of strategy and an attempt by DWP to use the common law to recover overpaid benefits. The article looks at a number of recent court decisions which have important implications for UK practice.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (August-September 2010), Mel Cousins

Mel Cousins

In this update, we look, in particular, at a number of recent decisions of the Court of Human Rights concerning the rights of same-sex couples and the rights of unmarried couples (Yiğit; Manenc; and J.M. v United Kingdom); and several decisions by the Court of Justice concerning free movement and the co-ordination of social security benefits, including cross-border access to health care and family benefits.

Secretary Of State For Work And Pensions V. Sister Is, Mel Cousins

Mel Cousins

This case before the Upper Tribunal concerned the rules of the state pension credit (SPC) which, in effect, provide that ‘members of religious orders’ who are ‘fully maintained by their order’ have no entitlement to a state pension credit. As the Three-Judge Panel pointed out this is the rule ‘regardless of the actual amount of their income or their other circumstances’. The case concerned both the interpretation of these two phrases and – assuming the Panel found that they applied to the claimants – the compatibility of such an approach with the European Convention on Human Rights (the Convention issue).

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (January-April 2010), Mel Cousins

Mel Cousins

In this review, we look at five recent decisions of the European Court of Justice and the European Court of Human Rights. The ECJ decided two interesting cases in the period, giving its first ruling on the IORP (Institutions for Occupational Retirement Provision) Directive (Directive 2003/41/EC) and a judgement on the interpretation of Regulation 881/2002 which gives effect to Resolution 1390 (2002) of the UN Security Council setting out measures against persons and entities associated with Osama bin Laden, Al-Qaeda and the Taliban. In Carson, the Grand Chamber of the Court of Human Rights upheld the decision of the Chamber …