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Lowth v. Minister for Social Welfare [1998] IESC 
1; [1998] 4 IR 321; [1999] 1 ILRM 5 (14th July, 1998)
Supreme
Court
Anthony
Lowth and Angela Lowth and Mark Lowth (minors) suing by their father and next
friend, Anthony Lowth
(Plaintiffs)
v.
Minister
for Social Welfare and the Attorney General
(Defendants)
No.136
of 1994
[14th
July 1998]
Status:
Reported at [1999] 1 ILRM 5
Hamilton
C.J.
1. This
is an appeal brought by the above named Anthony Lowth on his own behalf and on
behalf of his children, the minors named in the above entitled proceedings,
against the judgment of Costello J, as he then was, delivered on 16 December
1993 and the order made in pursuance thereof, whereby the said
plaintiffs’ claim was dismissed.
2. The
facts relevant to, and the nature of, the claim made by the said first named
plaintiff (hereinafter referred to as the appellant) on his own behalf and on
behalf of his children, the minors herein, are set forth in the judgment of the
learned trial judge as follows:
3. The
first-named plaintiff was married on 22 December 1979. There were two children
of his marriage, Angela born on 8 December 1980, and Mark, born on 9 February
1982. On 3 March 1984 he and his young children were deserted by his wife. The
plaintiff at the time was employed in a building firm. He had no one to help
him rear and care for his children and having tried to maintain his position in
the firm on a part-time basis he was eventually forced to give it up so that he
could look after his two young children. When they got older and developed to a
stage when they did not require his full-time attention he attempted to find
employment but unfortunately failed. He has, since he had to give up his
employment, been dependent firstly on unemployment benefit, and later on
unemployment assistance, augmented by social assistance payments. His claim in
these proceedings arises from the fact that a deserted wife would in
circumstances similar to his have been eligible to qualify for the receipt of
what is called ‘deserted wife’s benefit’ under the provisions
of the Social Welfare (Consolidation) Act 1981. His claim is:-
(a) that
he and his children have been entitled to receive less income than a deserted
wife and her children are entitled to,
(b) that
he has thus been discriminated against by reason solely of his sex in
contravention of Council Directive 79/7/EEC, and,
- that
the provision of the 1981 Act which makes provision for deserted wives but not
for deserted husbands in similar situations is in breach of the
plaintiff’s constitutional rights and is therefore unconstitutional.
4. While
the Community law issue was originally in the forefront of the
appellant’s claims, this claim was abandoned by counsel for the appellant
in the light of a decision of the European Court of Justice and it was accepted
that the legislation sought to be impugned did not contravene the provisions of
Council Directive 79/7/EEC as originally claimed.
5. Consequently,
the only issue which arose for decision in the High Court was the
constitutional issue.
6. In
the amended statement of claim delivered on behalf of the appellant, the
appellant claimed,
inter
alia:
(d) A
declaration that the provisions of the
Social Welfare (Consolidation) Act 1981,
Part II, Chapter 13,
ss. 100 to
103 and Part III, Chapter 5,
s. 195 (as
amended) containing special provisions for deserted wives, are unconstitutional
as they breach the plaintiffs’ constitutional rights pursuant to
Article
40.3 of the Constitution and the guarantee of equal treatment pursuant to
Council Directive 79/7/EEC.
(f)
A
declaration that the failure on the part of the first named defendant to treat
the first named plaintiff in a similar manner to a deserted wife similarly
situated amounts to a breach of the plaintiffs’ rights under
Article 40.
1
of the Constitution of Ireland.
(g) A
declaration that the failure on the part of the first named defendant to treat
the first named plaintiff in a similar manner to a deserted wife similarly
situated amounts to a breach of the plaintiffs’ rights under
Article 40.3
of the Constitution of Ireland.
(h) A
declaration that the failure on the part of the first named defendant to treat
the first named plaintiff in a similar manner to a deserted wife similarly
situated amounts to a breach of the plaintiffs’ rights under
Article 41
of the Constitution of Ireland.
Impugned
provisions
(
1)
Subject
to
this Act, deserted wife’s benefit shall be payable to a woman who-
(a) has
been deserted by her husband,
(b) if
she is less than 40 years of age, has at least one qualified child residing w
with
her,
(c) satisfies
the contribution conditions in
s. 101, and
(d) satisfies
such other conditions as may he prescribed.
(2) The
circumstances in which a woman is to be regarded for the purposes of this
section as having been deserted by her husband shall be determined in
accordance with regulations made under s. l95(4)(a).
(3)
A child shall be a qualified child for the purposes of this section in relation
to a woman if, on the assumption that her husband were dead, such child would
be a qualified child in relation to her for the purposes of a widow’s
(contributory) pension under this Part.
(4)
For the purposes of this chapter ‘yearly average’ means the average
per contribution year of contribution weeks in respect of which the husband (or
claimant) has qualifying contributions, voluntary contributions or credited
contributions in the appropriate period specified in s. l0l (
1)(b).
8. It
is not necessary to set out the provisions of ss. 101 to 103 because these
sections merely set forth the conditions of receipt, the rates of benefit and
provide for increases including increases for child dependants.
(
1)
A deserted wife’s allowance shall, subject to regulations, be paid to a
woman—
(a) who
has been deserted by her husband,
(b) who,
if she is less than 40 years of age, has at least one qualified
child
residing with her, and
(c) who
satisfies the conditions as to means specified for the
purposes
of this subsection by regulations.
(2)
The
rate of a deserted wife’s allowance shall be the same as the rate of the
widow’s (non-contributory) pension which would be payable to the woman
under Chapter 4 if she were a widow.
S.100
of
the Act provided for the payment of a deserted wife’s
‘benefit’ and
s. 195 provided for the payment of a deserted
wife’s ‘allowance’.
10. No
provision was made in the Act of 1981 for the provision of either ‘a
benefit’ or an ‘allowance’ to deserted husbands, including
the appellant.
198B—(l)
A deserted husband’s allowance shall, subject to regulations, be paid to
a man who—
(a) has
been deserted by his wife,
(b) has
at least one qualified child residing with him, and
(c) satisfies
the conditions as to means for entitlement to a widow’s
(noncontributory)
pension under Chapter 4 of Part III.
(2) The rate of a deserted husband’s allowance payable to a person shall
be the
same
as the rate of a widow’s (non-contributory) pension payable to a widow
under Chapter 4 of Part III.
12. This
section provided, for the first time, for the payment to a deserted husband who
complied with the conditions therein set forth of a means-tested allowance (not
a benefit).
13. This
situation was changed by the provisions of the Social Welfare Act 1990 which
substituted a new Chapter 5A in the Act of 1981, thereby removing the
provisions which had been made for a deserted husband’s allowance.
14. This
new chapter provided for the payment of a lone parent’s allowance. S.
198A provided:-
(
1)In
this Chapter—
‘lone
parent’ means, subject to regulations under s. 198F
(a) a
widow,
(b) a
widower,
(c) a
separated spouse,
(d) an
unmarried person, or
(e) a
person whose spouse has been committed in custody to a
prison
or place of detention for a period of not less than six calendar months,
who
has at least one qualified child normally residing with that person;
‘allowance’
means a lone parent’s allowance.
The
provisions contained in s. 100 of
the Act of 1981 with regard to the payment of
the deserted wife’s benefit were amended by
s. 25 of the
Social Welfare
Act 1992 which provided that:-
(
1)
S. 100 of the Principal Act is hereby amended by—
(a) the
insertion in subs. (
1) after paragraph (b) of the following paragraph:
(bb)
does not have an aggregate of reckonable income and reckonable earnings in
excess of a prescribed amount in the last complete income tax year or in such
subsequent period as a deciding officer or an appeals officer may consider
appropriate, and
(b) the
substitution for subs. (2) of the following subsection:
(2)
The circumstances in which a woman is to be regarded for the purposes of this
section as having been deserted by her husband shall be specified in regulations.
(2)
Paragraph (a) of subs. (
1) shall not apply to any claim for deserted
wife’s benefit made before the commencement of this section.
(3)
This section shall come into operation on such day as the minister may appoint
by order.
Whilst
the pleadings herein invoked a variety of provisions of the Constitution, it
was on
Article 40.
1 thereof that the plaintiffs based their claim. That
article
provides as follows:-
All
citizens shall, as human persons, be held equal before the law. This shall not
be held to mean that the State shall not in its enactments have due regard to
differences of capacity, physical and moral, and of social function.
That
wives deserted by their spouses between 1970 and 1990 were more favourably
treated in respect of social welfare payments than husbands similarly deserted
during the same period is beyond dispute. The plaintiffs contended that this
was an invidious and unconstitutional discrimination against deserted husbands.
The defendants argued that the distinction in treatment between the two
categories was permissible and led evidence in support of that contention.
Ms
Marie McGarry, an assistant principal officer in the planning unit of the
Department of Social Welfare, stated that the deserted wife’s allowance
(originally introduced by the
Social Welfare Act 1970) and the deserted
wife’s benefit (first enacted by the
Social Welfare Act 1973) were
schemes ‘introduced to meet a perceived need at the time that wives were
in a particularly difficult position and were not provided for by the social
welfare code’. Ms McGarry gave specific evidence by reference to census
returns and otherwise that in 1979 16% of married women were in the labour
force and that by 1991 it had only increased to 31%. In addition she gave
evidence that the average weekly earnings of female workers in industry in 1991
was 59.2% of the corresponding average weekly earnings of male workers. Ms
McGarry confirmed that the rationale behind the deserted wife’s schemes
was and still is that married women are more in need of income support than
men. The accuracy of the foregoing statistics was not challenged nor their
admissibility disputed. Instead it was argued that the available evidence as to
the percentage of married men and married women in employment was irrelevant.
On behalf of the plaintiffs it was argued that the appropriate comparison was
between the percentage of deserted husbands in paid employment and the
comparative figure in respect of deserted wives. It does not appear, however,
that any such figures were available. Certainly they were not produced by the
plaintiffs.
It
has long been recognised that the burden of establishing the
unconstitutionality of a law is a formidable one. In
Pigs
Marketing Board v. Donnelly
[1939]
I.R
.
Hanna
J set down the standard in the following terms ( at p. 417):
When
the court has to consider the constitutionality of a law it must, in the first
place, be accepted as an axiom that a law passed by the Oireachtas, the elected
representatives of the people, is presumed to be constitutional unless and
until the contrary is clearly established.
The
particular difficulty of establishing the unconstitutionality of legislation
dealing with economic matters was recognised by Kenny J in
Ryan
v. Attorney General
[1965] IR 294 at
p.
312 in the following terms:-
When
dealing with controversial social, economic and medical matters on which it is
notorious views change from generation to generation, the Oireachtas has to
reconcile the exercise of personal rights with the claims of the common good
and its decision on the reconciliation should prevail unless it was oppressive
to all or some of the citizens or unless there is no reasonable proportion
between the benefit which the legislation will confer on the citizens or a
substantial body of them and the interference with the personal rights of the
citizens. Moreover, the presumption that every Act of the Oireachtas is
constitutional until the contrary is clearly established applies with
particular force to this type of legislation.
In
relation to taxing statutes (which are in one sense the converse of social
welfare legislation in that the former are the means by which public revenues
are exacted so that they may be dispersed in part at least pursuant to the
welfare codes). O’Hanlon J said in
Madigan
v. Attorney General
[1986] ILRM 136 at
pp.
151–152:-
It
has been recognised, both in our own jurisdiction and in the United States,
where the constitutional guarantees are closely analogous to those provided by
the Irish Constitution, that tax laws are in a category of their own, and that
very considerable latitude must be allowed to the legislature in the enormously
complex task of organising and directing the financial affairs of the State.
Again
it is settled law that
Article 40.
1 of the Constitution does not require that
all citizens should be treated identically. As Ó Dálaigh CJ
pointed out in
O’Brien
v. Keogh
[1972] IR 144 at p. 156 (by reference to the earlier decision of this Court in
State
(Hartley) v. Governor of Mountjoy Prison
Supreme
Court 1967 No. 136, 21 December 1967):
‘A
diversity of arrangements does not effect discrimination between citizens in
their legal rights. Their legal rights are the same in the same circumstances.
This in fact is equality before the law and not inequality. . . .’
Article 40 does not require identical treatment of all persons without
recognition of differences in relevant circumstances. It only forbids invidious
discrimination.
This
reasoning was repeated and extended in
Murphy
v. Attorney General
[1982] IR
241
where Kenny J said (at p. 283):-
In
the course of his judgment in
Brennan
v. Attorney General
449,
[1983] ILRM 449, Barrington J stated at p. 480 of the report as follows:-
Following
these principles the courts have stressed that
Article 40 does not require
identical treatment of all persons without recognition of differences in
relevant circumstances. It only forbids invidious discrimination. See
O’Brien
v. Keogh
[1972] IR 144 and
Landers
v. Attorney General
(1975)
109
ILTR
1.
There
is a sense in which to legislate is to discriminate. The legislature in its
efforts to redress the inequalities of life or for other legitimate purposes
may have to classify the citizens into adults and children, employers and
workers, teachers and pupils and so on. Pringle J stated in
O’Brien
v. Manufacturing Engineering Co. Ltd
[1973] IR 334 that such division of the citizens into different classes was
envisaged by the second sentence of
Article 40.
1. He then added (at p. 341):
Therefore
it would appear that there is no unfair discrimination provided every person in
the same class is treated in the same way.
No
doubt this is true, but it might be prudent to express, what is perhaps implied
in it, that the classification must be for a legitimate legislative purpose,
that it must be relevant to that purpose, and that each class must be treated
fairly.
The
facts proved in evidence before the learned High Court judge show clearly how
women in employment at the material times were at a financial disadvantage in
comparison to men. Again the statistics adduced in evidence established the
relatively small proportion of married women in the work force. Moreover the
provisions of the Constitution dealing with the family recognise a social and
domestic order in which married women were unlikely to work outside the family
home. Furthermore the Married Women’s Property Acts 1882–1907 which
significantly limited the rights of a married woman to deal with her own
property were not repealed until the Married Women’s Status Act of 1957.
An even more obvious impediment to the married woman engaging in business was
the
Civil Service Regulation Act 1956 which required the retirement on marriage
from the civil service of women who were civil servants. It was not until 1973
that that prohibition was repealed by the
Civil Service (Employment of Married
Women) Act 1973 at about the same time as a comparable restriction on married
women working in banks was lifted. These realities confirm and enliven the
picture provided by the statistics given in evidence by the defendants. It is
no function of this Court to adjudicate upon the merits or otherwise of the
impugned legislation. It is only necessary to conclude, as this Court has done,
that there were ample grounds for the Oireachtas to conclude that deserted
wives were in general likely to have greater needs than deserted husbands so as
to justify legislation providing for social welfare whether in the form of
benefits or grants or a combination of both to meet such needs.
The
plaintiffs’ claim was presented and contested on the narrow grounds that
there was no economic justification for differentiating between deserted
husbands and deserted wives. In confining the judgment to that issue it is not
to be inferred that this Court has expressly or by implication accepted that
other obstacles to the plaintiffs’ claim would have been resolved in
their favour. In particular it must be emphasised that the court is not
purporting to review in any way the established jurisprudence in relation to
the construction of
Article 40.
1 of the Constitution or the basis of the right
of equality enshrined therein. Again the basis on which the argument was
presented and disposed of made it unnecessary to explore what remedy could have
been available to the plaintiffs in the event of their succeeding in the
proceedings which represented a challenge to the constitutionality of payments
made to deserted wives without identifying any mechanism which could provide
similar payments for deserted husbands.
Accordingly
the appeal will be dismissed.
© 1998 Irish Supreme Court
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