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

Surrogacy Leave And Eu Law: Case C 167/12, C.D. V S.T. And Case C 363/12, Z. V A Government Department, Judgements (Grand Chamber) Of 18 March 2014, Mel Cousins

Mel Cousins

Advances in reproductive technology have tended to outpace the capacity of legislators to respond to these changes, leading to difficult legal questions for the courts. Surrogacy is one particular area where advances in technology have led to many legal challenges and have highlighted the failure (in several jurisdictions) to enact appropriate legislation in response to technological developments and/or differing views about what is ‘appropriate’. Two recent cases before the European Court of Justice (CJEU) have raised the issues as to whether either EU secondary legislation (in particular the Pregnant Workers Directive 92/85/EEC and/or the Equal Treatment Directives 2006/54/EC and 2000/78/EC) …

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.

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 …

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 …

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.

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.

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 …

A Step Too Far - Posthumously Conceived Children And Social Security Entitlements In Vernoff V Astrue, Mel Cousins

Mel Cousins

This case note examines a recent decision of the Court of Appeals for the Ninth Circuit concerning the entitlements of posthumously conceived children under social security. In contrast to its earlier (expansionary) decision in Gillett-Netting, here the Court set out the limits to how far it is willing to push the interpretation of the (convoluted) legislation and refused to find a right to benefit where there was no evidence that the father had consented to (or even considered) having a child post-mortem.

Age Discrimination And Social Benefits: The Long Retreat From Tétreault-Gadoury?, Mel Cousins

Mel Cousins

This case note looks at a number of recent decisions of the Canadian courts concerning age discrimination as it applies to social benefits.

Homelessness And The Charter Of Rights, Mel Cousins

Mel Cousins

There have, to date, been relatively few cases concerning homelessness and the Canadian Charter of Rights. Yet the rights set out in the Charter, such as the right to freedom of expression (s. 2(b), the right to life, liberty and the security of person (s. 7) and equality rights (s. 15) should all play an important role in protecting the position of a disadvantaged group such as the homeless. This article looks at some of the main cases concerning homelessness and the Charter (part I). It then goes on to look at the constitutional case law of the United States …

‘A Recommitment To The Idea Of Substantive Equality’ (Or Not)? S. 15(1) Of The Charter Of Rights After Kapp: Harris V Canada (Human Resources And Skills Development), Mel Cousins

Mel Cousins

This note looks at the decision of the Federal Court of Appeal in Harris – a case which raised important equality issues about the operation of the ‘drop out’ provisions in the Canadian Pension Plan. The case is interesting both for the issue itself but also because it is one of the first judgments to consider the impact of the Supreme Court’s restatement in Kapp of its approach to s. 15. However, the court of appeal was split with all three judges giving a different analysis of the issues (albeit that the claim was rejected on a split decision). Part …

Posthumously Conceived Children And Social Security Entitlements; Or Things (Not) To Do In Little Rock When You’Re Dead, Mel Cousins

Mel Cousins

This case note examines a number of recent decisions of the Arkansas state courts concerning the entitlements of posthumously conceived children under social security and workers compensation law. These decisions highlight the differences in approach which have been adopted in this important area and the difficulties caused by the lack of a uniform approach in federal law.

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 …