Law Commons^™

Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins

Mel Cousins

The Gendered Dimensions Of Social Insurance For The "Non-Poor" In Canada, Stephanie Ben-Ishai

Stephanie Ben-Ishai

This article emerges from an exploration of the meanings of consumer bankruptcy in the current context of Canadian society, as well as the role consumer bankruptcy plays in shaping this context. Examining consumer bankruptcy through the lens of gender relations, the claim is made that Canadian consumer bankruptcy legislation, policies, practices, and accompanying discourses are implicated in the causation and perpetuation of the conditions of marginalization and subordination endured by women who experience long-term poverty. These women are affected not only in terms of access to the bankruptcy system, but also by the broader implications of the delivery of consumer …

Social Security Reform: Risks, Returns, And Race, Dorothy A. Brown, Karen C. Burke, Grayson M.P. Mccouch

Grayson McCouch

The debate over social security reform has far-reaching implications for the economic well-being of blacks and other minority groups. In this article, we examine how blacks have fared under the existing system, and then consider the likely consequences of moving toward a privatized system. Specifically, we consider the claim, recently advanced by some privatizers, that blacks receive an especially "bad deal" under the existing system and would be better off under a privatized system. We find that, for blacks as a group, this claim tends to overstate both the shortcomings of the existing system and the advantages of privatization. Furthermore, …

Privitizing Social Security: Administration And Implementation, Karen C. Burke, Grayson M.P. Mccouch

Grayson McCouch

This article considers administrative issues that bear on the structure and implementation of any universal, mandatory system of personal accounts within the Social Security system. The central issues involve tradeoffs between relatively standardized, low-cost options with constrained individual choice and limited risk, on the one hand, and more flexible, higher-cost options with enhanced opportunities for individual control and greater risk, on the other hand. A centralized system modeled on the Thrift Savings Plan for federal employees could balance these goals by offering participants a relatively narrow range of investment and withdrawal options, with correspondingly low administrative costs and limited risks. …

Children’S Benefits In Social Security, Stephen D. Sugarman

Stephen D Sugarman

No abstract provided.

Reconfiguring Social Security For The 21st Century, Susan A. Channick

Susan A. Channick

This article focuses on In the Matter of the Guardianship and Protective Placement of Jimmie L. v. Sauk County. The guardian in the case was appointed in one state, but the guardian desired to relocate to another state. The article also explores the use of the Uniform Enforcement of Foreign Judgments Act where issues arise in interstate guardianship.

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.

The Right To Freedom From Discrimination: Child Poverty Action Group V Attorney General, Mel Cousins

Mel Cousins

This case comment examines recent jurisprudence concerning the right to freedom from discrimination under the New Zealand Human Rights Act (HRA) and Bill of Rights Act (NZBORA). In particular, it examines the ruling of the Court of Appeal in Child Poverty Action Group (CPAG) v Attorney General, and also considers relevant aspects of the decisions in Ministry of Heath v Atkinson and Attorney General v IDEA Services. These three decisions have marked an important step forward in the interpretation of the human rights provisions by the New Zealand courts. Following an introduction to the issues raised in the CPAG case …

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

Mel Cousins

Mr. Dooley And Mr. Gallup: Public Opinion And Constitutional Change In The 1930s, Barry Cushman

Barry Cushman

Scholars interested in the development of political and constitutional culture during the 1930s sometimes draw inferences about popular preferences on various issues of social and economic policy from the results of presidential and congressional elections. A review of contemporary public opinion polls taken by George Gallup for the American Institute of Public Opinion and by Elmo Roper for the Fortune Magazine survey offers a more granular understanding of popular views on the public policy issues of the day. This article canvasses all of the public opinion polls taken by Gallup and Roper between 1935, when they began publishing their results, …

Intertwining Of Poverty, Gender, And Race: A Critical Analysis Of Welfare News Coverage From 1993-2000, Deseriee A. Kennedy

Deseriee A. Kennedy

Over the years, welfare has become highly intertwined with ideological beliefs involving gender, race, and poverty. As the nature of welfare transformed to include non-white recipients, the perception of welfare recipients as single "worthy white widows" was replaced by the "lazy African-American breeders." This study examined how television news may have appropriated this negative image in its coverage of the changes in the U.S. welfare system that took place during the 1990s. News stories presented by the major U.S. television networks from 1993 to 2000 were examined. The analysis showed that news stories tended to depict the typical welfare recipient …

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

Mel Cousins

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.

Retirement Security: Leveraging The Research And Development Tax Credit, Tristen J. Cohen

Tristen J Cohen

Abstract: The long-term health and stability of the social security program is currently being threatened by significant demographic shifts and petty political gamesmanship. The importance of the program combined with the significance of the chance of insolvency requires that some action be taken in the present to mitigate problems in the future. Congress can do this by decreasing benefits, raising taxes, or finding alternative ways to raise revenue. One such alternative is investing in program that will increase economic activity and productivity. This paper argues that the Startup Innovation Credit Act of 2013 leverages the research and development credit …

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

Mel Cousins

Right To Reside Test Found Incompatible With Eu Law, Mel Cousins

Mel Cousins

In Patmalniece the UK Supreme Court ruled that in the case of state pension credit, where the right to reside test forms part of the habitual residence test, the right to reside test was not incompatible with EU law as it was objectively justified. However, the Chief Social Security Commissioner for Northern Ireland has recently ruled that the right to reside test is contrary to EU law in a case involving child benefit. This note analyses this decision. The EU Commission has also commenced infringement proceedings against the UK in relation to the compatibility of the test with EU law.

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 …

Equal Treatment And Objective Justification In Social Security Cases Under The European Convention On Human Rights, Mel Cousins

Mel Cousins

This article discusses recent UK case law on equal treatment and social security with particular reference on objective justification in two important recent decisions: the Supreme Court decision in Humphreys and the Court of Appeal’s judgement in Burnip. There has been a marked and progressive improvement in the analysis of equal treatment issues under the ECHR by the UK courts. Decisions of European Court have helped to clarify that Article 14 is not narrowly confined to the grounds set out in Article 14 and that a broader range of statuses are also covered. The more flexible approach to comparators has …

Interest-Convergence And The Disability Paradox: An Account Of The Racial Disparities In Disability Determinations Under The Ssa And Idea, Jana R. Dicosmo, Robert L. Hayman, Jordan G. Mickman

Robert L. Hayman

No abstract provided.

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 …

A ‘Simple Test’: Posthumously Conceived Children And Social Security Entitlements In Astrue V Capato, Mel Cousins

Mel Cousins

This case note examines a recent Supreme Court decision concerning the interpretation of the provisions of the Social Security Act concerning entitlement to survivor’s benefits in respect of children. The case involved the correct construction of the term ‘child’ in the Act but arose, more specifically, from a series of cases concerning posthumously conceived children. Courts of Appeal had come to different interpretations as to correct interpretation of the Act and the Supreme Court intervened to resolve the conflict. The Court accepted the Social Security Agency’s (SSA) interpretation of the legislation. However, although legally correct, this does little if anything …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (January-March 2012), Mel Cousins

Mel Cousins

Unusually, there were only a small number of significant rulings by either the Court of Justice or the Court of Human Rights in the period January-March 2012. In Markin v Russia the Court of Human Rights showed its positive side, ruling that the exclusion of servicemen from entitlement to parental leave, while servicewomen are entitled to such leave, was in violation of Article 14 taken in conjunction with Article 8. However, the other important case considered by the Court – B. v United Kingdom – unfortunately makes no contribution whatsoever to the protection of human rights. The Court of Human …

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 …

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.

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.

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.