Law Commons^™

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 …

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

Mel Cousins

In Patmalniece the Court of Appeal has considered the compatibility of the UK right to reside requirement with Regulation 1408/71/EEC on co-ordination of social security for migrants. The Court earlier upheld the compatibility of the right to reside rule with the EU Treaty in Abdirahman. However, this case was different in that the claimant – unlike those in the previous cases - was within the personal scope of Regulation 1408/71.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (October-December 2009), Mel Cousins

Mel Cousins

This note considers the decisions in Skugar v. Russia (40010 04) on freedom of religion and tax social security numbers; the Court of Human Rights decisions in Bladh v. Sweden (46125 06), Si Amer v France (29137 06) and Wieczorek v. Poland (18176 05); Case C-3 08 Leyman and Case C-314 08 Filipiak on free movement of workers and social security; and Case C-363 08 Slanina on family benefits.

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

Mel Cousins

In this review, we look, inter alia, at a number of decisions of the Court of Human Rights including rulings concerning the rights of same-sex couples (Schalk and P.B. v Austria); a case which considers the position concerning the Convention and the transfer by a local authority of a resident to a new residential care home (Watts); and an interesting case concerning the scope of ‘other status’ under Article 14 of the Convention (Peterka). We also consider a number of ECJ cases including a further ‘development’ of the Court’s case law with regard to cross-border access to health care (Commission …

Human Rights, Anti-Discrimination And Social Security Benefits: Recent Uk Case Law, Mel Cousins

Mel Cousins

Since the adoption of the Human Rights Act 1998, challenges to UK social security law on the basis of the European Convention on Human Rights have become common - especially under the anti-discrimination provisions of Article 14. However, few of these challenges have been successful and, in general, the English courts have shown a poor understanding of the principles of human rights law. The recent decisions of the European Court of Human Rights in Stec (2005) 41 EHRR SE 295 and the House of Lords in RJM (2008) UKHL 63 have clarified important issues including the material scope of the …