Wednesday 18 July 2018

Elderly man (83) challenges refusal to pay him 'exceptional needs payment' for winter clothing

(Stock photo)
(Stock photo)

Tim Healy

An elderly man has challenged a refusal to pay him an exceptional needs payment for winter clothing.

Patrick Cullen, aged 83, of Ballybough Court, Ballybough, Dublin, who suffers chronic pain as a result of a previous fracture in his foot, received the payment every year for the past 30 years but was refused last December, the High Court heard.

In a separate but similar challenge, Sarah Ryan, of Annesley Close, Ballybough, who suffers from a number of medical complaints, including kidney disease, was also refused an exceptional needs payment for winter clothing.

Her medical conditions are exacerbated by cold weather and, until the December 2017 refusal, she had received the payment over some 15 years, the court was told.

It is claimed the ENP (Exceptional Needs Payment) scheme is being improperly applied by the Minister for Social Protection on a nationwide basis, affecting thousands of applications a year.

An ENP, usually for about €100,  is designed to meet an exceptional need of a recipient of social welfare or HSE payments.

There is no automatic entitlement to such payments which are made at the discretion of the Department's representatives. They are generally used for special clothing for people who are ill; bedding and cooking utensils for those moving into a new home or to visit a relative in hospital.

Both Mr Cullen and Ms Ryan were told by the Department of Social Protection (DSP) last December they were not entitled to an ENP because their need was not exceptional and “not unforeseen”. The refusals were upheld following reviews.

There is no provision in the Social Welfare Acts for a test of unforeseeability and the refusals are unlawful, arbitrary, unreasonable and disproportionate, it is claimed.

Feichín McDonagh SC, instructed by solicitor Eileen McCabe, secured leave from Mr Justice Seamus Noonan on Monday for judicial review of the refusals in both cases.

In refusing the payments, the DSP had said ENPs are made only in once off, exceptional and “unforeseen” circumstances and it held the circumstances of neither applicant fell into that category, it is claimed.

That explanation was set out in “pro forma” refusal documents used by the Department, it is claimed.

It is alleged, without notice to those who rely on the exceptional payments scheme, the Department has altered the operation of the scheme by including the word “unforeseen” when no such test is provided for under the Social Welfare Consolidation Acts.

When Ms McCabe wrote to the Department stating the reliance on a unforseeability test was outside the provisions of the Acts, the Department had said it would refer the matter for review by an independent official.

In a letter of February 9th, the solicitor asked the Department to respond within seven days as the matter was urgent but no reply was received within that time, the court heard.

Separately on Monday, the judge was told an earlier challenge by Martin Finn, Ballybough Court, Ballybough, over refusal of an ENP to buy a winter overcoat had been resolved to the satisfaction of the applicant.

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