Law Commons^™

Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins

Mel Cousins

Social Security, Discrimination And Justification Under The European Convention On Human Rights, Mel Cousins

Mel Cousins

This article considers the current state of the law concerning justification of potentially discriminatory treatment in the area of social security under the European Convention on Human Rights. Over time the UK courts have become familiar with the Convention and have improved their interpretation of human rights law and, in particular, non-discrimination under Article 14 of the Convention. The final step in this process is the consideration of proportionality in relation to the justification of potentially discriminatory provisions. There have been a number of recent important decisions on this issue from the Supreme Court including the Recovery of Medical Costs …

Social Welfare Appeals, Appeal Revisions And Oral Hearings, Mel Cousins

Mel Cousins

This note discusses two recent Irish High Court decisions which concern when a social welfare appeals decision can be revised and when an oral hearing may be held as part of the social welfare appeals process. It would appear that the claimants (or their legal teams) were seeking to establish when an oral hearing should be held. However, the Social Welfare Appeals Office (SWAO) – having originally decided both cases without an oral hearing – proposed to reconsider the appeals with an oral hearing after judicial review proceedings were initiated.

The European Convention On Human Rights, The Un Convention On The Rights Of The Child And The ‘Benefit Cap’ - R (Sg) V Secretary Of State For Work And Pensions [2015] Uksc 16, Mel Cousins

Mel Cousins

This note looks at the recent decision of the UK Supreme Court in the 'benefit cap' case. The Court narrowly rejected the appeal concerning whether the benefit cap was in breach of Article 14 of the European Convention on Human Rights but some judges would have held that the cap was in breach of the UN Convention on the Rights of the Child.

Social Assistance And The Right To Reside At The European Court Of Justice – Dano V Jobcenter Leipzig, Mel Cousins

Mel Cousins

This case involves an important decision of the Grand Chamber of the Court of Justice of the EU (CJEU) in relation to when Member States may refuse benefits to non-nationals who do not have a right of residence under EU law. The Court held that Article 24(1) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and Article 4 of Regulation No 883/2004 did not preclude a national law under which nationals of other Member States are excluded from entitlement to certain …

Disability Pensions, Property Rights And Legitimate Expectations: Béláné Nagy V. Hungary, Mel Cousins

Mel Cousins

Pregnancy As A ‘Personal Circumstance’? A Case Study Of Equality Jurisprudence Under The Canadian Charter Of Rights, Mel Cousins

Mel Cousins

This article examines the recent decision of the Federal Court of Appeal in Miceli-Riggins v Attorney General of Canada as an example of the approach which the Canadian courts are taking to the interpretation of s. 15 of the Charter of Rights (in the area of social benefits) following the Supreme Court’s recent attempts to ‘restate’ that law in a series of cases. It argued that, whatever the intention of the Supreme Court, the restatement of the law has created general confusion in the lower courts and tribunals. In addition, in cases concerning social benefits, the Court’s statements, in cases …

Pension ‘Splitting’, Property Rights, Equality And The Canadian Charter Of Rights - Runchey V. Canada (Attorney General), 2013 Fca 16, Mel Cousins

Mel Cousins

This note discusses the decision of the Federal Court of Appeal in Runchey v. Canada (Attorney General). The case concerned an equality challenge concerning provisions of the Canada Pension Plan (the Plan) under s. 15 of the Canadian Charter of Rights and Fundamental Freedoms. This was dismissed by the Court. However, the main focus of this note is to point out that it is arguable that the main issue raised in the case (i.e. the loss of pension rights by one spouse without any gain to the other) is not a s. 15 equality issue but rather an unjust deprivation …

Religious Freedom And Workers’ Compensation - Big Sky Colony V Montana Department Of Labor And Industry, Mel Cousins

Mel Cousins

Social security and health care litigation has played a prominent role in the development of the jurisprudence concerning the religious clauses of the US Constitution. At the time of writing further litigation in this area is ongoing with initial rulings having been handed down in relation to challenges concerning the compatibility of the PPACA’s contraceptive mandate with the Religious Freedom Restoration Act (RFRA). This note considers an interesting recent decision of the Montana supreme court which considered the constitutionality of an extension of coverage under the Montana workers’ compensation code to colonies of the Hutterite (or Hutterian or Hutterische) Brethren …

Decisions And Appeals In Irish Social Welfare Law: Recent Case Law, Mel Cousins

Mel Cousins

Equal Protection: Immigrants' Access To Healthcare And Welfare Benefits, Mel Cousins

Mel Cousins

The adoption of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter “PRWORA”) led to considerable litigation over immigrants’ rights to welfare benefits and access to health care. The approaches adopted by different courts (both federal and state) diverged significantly based on the various statutory schemes involved as well as distinct approaches to equal protection. However, no “on point” cases have reached the United States Supreme Court, so the “correct” approach remains unclear. Following the fiscal crisis of 2008, several states moved for increased exclusion of certain immigrants residing in the country legally from state healthcare or welfare …

Civis Europeus Sum? Social Assistance And The Right To Reside In Eu Law., Mel Cousins

Mel Cousins

This article examines the current status of EU law as regards making a right to social assistance dependent on having a legal right to reside in the ‘host’ member state. In particular, it looks at the recent decision by the Court of Justice of the European Union (CJEU) in Brey and discusses whether this ruling helps to clarify the legal position.

A2 Workers And The Right To Reside In Ireland – Genov And Gusa V Minister For Social Protection, Mel Cousins

Mel Cousins

Mobility Allowance And The Law, Mel Cousins

Mel Cousins

The Irish government has recently announced the abolition of the mobility allowance and motorised transport grant. It appears that this decision was heavily influenced by the Government’s view that ‘the schemes are illegal in the context of the Equal Status Acts’. Although the reform options considered and legal advice received have not been specified, the impression has been created that reform would be very complex and that it would be impossible to reform the existing scheme to make it legally compliant without a major increase in its budget. This note discuses the legal issues concerning the operation of the mobility …

A Case Of Premature Litigation: Surrogacy, Equal Protection And Social Welfare Benefits, Mel Cousins

Mel Cousins

The issue of surrogacy in Irish law has received considerable (if somewhat belated) attention following the decision of the High Court to recognise a surrogate mother as the child’s mother for the purposes of birth certification. The Equality Tribunal has also referred to the European Court of Justice a complaint in which it has been argued that the failure to provide leave to a surrogate mother was in breach of EU and international law. A claim has also been brought under the Equal Status Acts (ESA) arguing that the failure of the Department of Social Protection (DSP) to provide a …

Rational Basis With Bite In Minnesota: Unemployment Benefits And Personal-Care Assistants, Mel Cousins

Mel Cousins

The Minnesota court of appeals has recently come to an interesting decision on equal protection and insurability of workers, ruling – in Weir v ACCRA Care - that the exclusion of certain personal care assistants (PCA) from the unemployment insurance scheme was in breach of the Minnesota equal protection guarantee. This note examines this recent decision, contrasting it with the approach under the federal equal protection clause. The case is one of a number in different jurisdictions in which less favorable treatment of ‘family member’ carers has been struck down under equal protection and human rights law.

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.

Citizenship, Residence And Social Security, Mel Cousins

Mel Cousins

In two recent cases the Court of Justice has considered the impact of Union citizenship on the long-standing issue of the exportability of social security payments. These decisions clarify (i) the position of the Court in relation to the material scope of the protection provided by Article 18 EC, i.e. that the exercise of free movement is itself sufficient to bring an issue within the scope of the Treaty regardless of whether the issue actually in dispute involves a question of Community law and (ii) that the Court will examine residence requirements as a restriction on the freedoms conferred by …

The Habitual Residence Condition In Irish Social Welfare Law, Mel Cousins

Mel Cousins

This article examines the recently introduced habitual residence clause in Irish social welfare law. Part 1 sets out the background to the significant change. Part 2 outlines the legislation. Part 3 discusses the meaning of the term "habitual residence" while Part 4 looks at possible issues under EU law, in particular Council Regulations 1408/71 and 1612/68.1 Part 5 considers the possible impact of other international legal instruments.