Committee Reports > List of Committees > Dáil > 1941 > Committee of Public Accounts > Interim and Final Report - Appropriation Accounts 1939 - 1940

APPENDIX II.

MINUTE OF THE MINISTER FOR FINANCE ON THE REPORT, DATED 12th DECEMBER, 1940, OF THE COMMITTEE OF PUBLIC ACCOUNTS.

Paragraphs 1, 6, 7, 12, 14, 16, 20.

These paragraphs do not appear to require comment on the part of the Minister. In regard to paragraph 1, sub-paragraph (2), the discussions with the Land Commission are still proceeding.

LOCAL GOVERNMENT AND PUBLIC HEALTH

Paragraph 2.—Contributions towards loan charges under the Housing (Financial and Miscellaneous Provisions) Act, 1932.

The Minister understands that it is the practice of the Department of Local Government and Public Health to consult the Attorney-General on points of law in regard to which any doubt is felt by the Department’s legal advisers, but he recognises that questions may arise in the course of administration upon which the administrative staff concerned may hold the view that no legal difficulty exists, but where in fact prudence would suggest the desirability of taking legal opinion. In this connexion the Minister agrees with the view of the Committee that the adoption in the administration of a service of a procedure which might involve the risk of a strained interpretation of the relevant statute or statutes is open to serious objection, and that legal opinion should be taken where any element of doubt is present.

Paragraphs 3, 4 and 5.—Grants under the Housing (Financial and Miscellaneous Provisions) Acts, 1932-1937.

Paragraph 3.—The question of amending legislation directed to dealing with the case referred to in this paragraph has, it is understood, been considered by the Minister for Local Government and Public Health, who is of opinion that an isolated case of the kind would not warrant him in seeking special legislative powers. The Minister for Finance however feels that the Minister for Local Government and Public Health should reconsider his conclusion, with a view to precluding the possibility of further cases of the kind occurring. It must at the same time be recognised that the framing of such legislation would present obvious difficulties having regard to the possibility that houses clearly erected as separate dwellings might at an appreciable period subsequent to the payment of grants be converted into one dwelling.

Paragraph 4.—In regard to the Committee’s view that legal opinion should be sought on the interpretation placed by the Accounting Officer on subsections 1 (d) and (e) of section 5 of the Housing (Financial and Miscellaneous Provisions) Act, 1932, the Minister is informed that the Department of Local Government and Public Health have consulted their legal advisers on this subject and have been advised that there is no statutory bar to the payment of grants to the same person under these subsections.

Paragraph 5.—The Minister is informed that of 28,025 houses reconstructed up to the end of September, 1941, 25,755 were in the occupation of farmers whose valuation did not exceed £25. No difficulty arises in these cases as the certificate of valuation which must be produced indicates the person who is the occupier. In cases of persons other than farmers evidence is required of occupation of the house to be reconstructed and of a right of tenure such as would warrant the allocation to the applicant of a grant for reconstruction. Moreover, the repairs and reconditioning must not be of a nature proper to be carried out by the landlord.

A copy of the advice received from the Law Officers as to the interpretation to be placed on the phrase “in his own occupation” is furnished in the Appendix to this Minute.

PUBLIC WORKS AND BUILDINGS

Paragraph 8.—Precautions against loss due to deterioration of State Property (buildings and accommodation).

The Minister is in agreement with the views of the Committee as to the need for ensuring that public property is so maintained and protected as to obviate loss, and the Commissioners of Public Works have, in fact, taken steps by means of a special instruction to their Assistant Architects to secure that in future this requirement will receive their constant attention. The Minister agrees also as to the importance of definitely determining official requirements as regards buildings or accommodation before any steps are taken to acquire property, and can assure the Committee that all proposals of this nature are closely scrutinised. In deference to the Committee’s observations such proposals will in future be subjected to an even more rigorous examination.

GÁRDA SÍOCHÁNA

Paragraph 9.—Payment of special subsistence allowances to members of the Gárda Síochána on temporary service.

In view of the explanations furnished by the Department of Justice the Minister has given covering sanction for the expenditure incurred in the two cases mentioned by the Committee.

As regards future cases, it has been agreed with the Department of Justice—

(a) that the prior sanction of the Minister will be sought for the payment of special allowances under Article 2(a) (6) of the Gárda Síochána Allowances Order, 1926, where it is known beforehand that the period of temporary service will be two months or more, and

(b) that if it is not known beforehand that the period of temporary service will be two months or more the sanction of the Minister will be sought immediately on the termination of two months’ temporary service or earlier if it becomes apparent that the temporary service will extend beyond two months.

POSTS AND TELEGRAPHS

Paragraph 10.—Acquisition of a site for Post Office purposes.

The agreement with the Agricultural Credit Corporation provided for the repayment of the rent paid by the Corporation since 1932 but the Minister regards the repayment as in the nature of a fine to secure the surrender of the Corporation’s interest in their lease. He is satisfied that the site, which was needed for Post Office purposes, could not have been acquired on more advantageous terms.

Paragraph 11.—Control of stocks of mail bags.

The matter of improving the methods of controlling stocks of internal mail bags has been proceeding, but investigations were necessarily prolonged and have not yet been concluded.

ARMY

Paragraph 13.—Irregular claims for expenses by officers attending courses of instruction abroad.

The Minister agrees with the views of the Committee and he has accordingly directed that in the two cases in question the amounts provisionally allowed by the Department of Defence, on foot of the particular expenses in respect of which the irregular claims were submitted, shall be recovered from the officers concerned.

It has been arranged that in any future cases of this kind, where the fees paid cover incidental travelling expenses, the officers attending the courses shall present any claims for such expenses direct to the Commanding Officer of the School of Instruction.

Paragraph 15.—Attendance and supervision of civilian tradesmen employed in Army Workshops.

The preparation of an appropriate Defence Force Regulation dealing with these matters is nearing completion.

Paragraph 17.—Maintenance of horse-drawn equipment.

Owing to the emergency it has not been considered advisable to dispose of any horse-drawn equipment. The matter will be reconsidered on the termination of the emergency and the Minister is assured that in the meantime all necessary steps are being taken to preserve the equipment.

Paragraph 18.—System of accounting for medical stores.

An Accounting Instruction dealing with, inter alia, medical, dental and veterinary stores, was issued on the 12th June, 1940.

ARMY PENSIONS

Paragraph 19.—Grants under the Defence Forces (Pensions) Scheme.

Sub-paragraph (1).—The Minister agrees with the view of the Committee. As already indicated to the Committee his sanction will be sought in any future similar case that may arise.

Sub-paragraph (2).—The Minister has noted the opinion of the Committee, which will receive due consideration in the event of the question arising of any further delegation by general authority of his functions under the Pensions Code. No further delegation is at present contemplated.

INDUSTRY AND COMMERCE

Paragraph 21.—Appointment of Managing Director of the Industrial Alochol Undertaking.

The Minister agrees that, where practicable, definite conditions of service prescribing, inter alia, the period of notice in the event of termination of appointment, should be settled in advance when arrangements for an appointment of the kind referred to by the Committee are being made.

It will be appreciated, however, that in certain cases it may not be feasible to secure acceptance of an appointment other than on the basis of a contract for a fixed period.

Paragraphs 22 and 23.—Expenditure on Alcohol Factories.

The views of the Committee have been noted.

UNEMPLOYMENT INSURANCE AND UNEMPLOYMENT ASSISTANCE

Paragraph 24.—Overissues of Unemployment Assistance.

The attention of the Department of Industry and Commerce has been specially drawn to the necessity for reducing the number of cases in which overissues of unemployment assistance are made on the basis of determinations by Unemployment Assistance Officers which are subsequently reversed or revised, although the officers when making the original determinations had all the facts before them. In the financial year 1940/41, there were 98 such cases, the amount involved being £126 18s. 5d., as compared with 242 cases involving a total sum of £156 3s. 3d., in the financial year 1939/40.

AGRICULTURE

Paragraph 25.—Butter Exports—Clearance of suspense account.

The suspense account to which the Committee direct attention in the paragraph under notice was cleared by the inclusion of an appropriate provision in the Supplementary Estimate for the Vote for Agriculture for 1940/41 (Subhead M.12).

Paragraph 26.—Administration of Butter Stocks (Levy) Order, 1938.

The Minister is in complete agreement with the Committee’s view that his prior approval should be sought for any proposal to depart from the provisions of a statutory Order which carry financial implications and that, where such departure is necessary, consideration should at once be given to the feasibility of making an appropriate amending Order.

The Minister is satisfied that the arrangements adopted by the Department of Agriculture in connexion with the collection of levy under the Order in question, as set out in paragraphs 2, 4 and 5 of the memorandum furnished to the Committee by the Accounting Officer on the 26th June, 1940, were, in the circumstances, reasonable and he has given his covering sanction therefor. The substance of these arrangements has now been given legislative sanction by section 4 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1941.

Following examination of the memorandum of the Accounting Officer and additional information obtained from the Department, the Minister has also sanctioned the remission of the levy payable on butter held in cold store on the appointed date by the thirty-one traders referred to in paragraph 3 of that memorandum.

OFFICE OF THE REVENUE COMMISSIONERS AND COMPENSATION BOUNTIES

Paragraphs 27 and 28.—Making of express statutory provision for remissions and repayments of Revenue and for grants from voted moneys.

The Minister has considered the Committee’s view that extra-statutory repayments of duty should be authorised only with regard to conditions of a temporary nature and that, where the necessity for repayment is likely to recur, steps should be taken to have the matter regularised by legislation. He agrees that concessions of a general and continuing nature, the character and scope of which permit of satisfactory statutory definition, should be made the subject of specific legislation whenever possible. Cases occasionally arise, however, where on grounds of equity or compassion a transitory concession is required which it would be unnecessary or impolitic to elevate into a statutory right. The Minister feels that relief can appropriately be afforded in such cases without express legislative authority even where the recurrence of circumstances warranting a similar concession is not unlikely.

In the Minister’s view there can be no doubt of the sufficiency of the authority of the Appropriation Act for payments from voted moneys of an exceptional or temporary character or, indeed, for continuing grants. He agrees that it is normally desirable, in the latter case, that the powers and duties to be exercised by the Departments concerned should, where practicable, be defined expressly by statute. As well as being unnecessary, however, it would also in general be undesirable to obtain permanent statutory authority for payments required merely to meet temporary exigencies even where there is a possibility of recurrence. As regards the payment of compensation bounty on exported unmanufactured tobacco to which the Committee specifically refer, the Minister is advised that there is no likelihood of a recurrence of the circumstances which necessitated the extra statutory payments.

APPENDIX TO THE MINUTE OF THE MINISTER FOR FINANCE.

Attorney-General.

1. Without the facts of a particular case it would, in my opinion, be impossible to interpret the words “in his own occupation” in section 5 (1) (h) of the Housing (Financial and Miscellaneous Provisions) Act, 1932.

2. It may be stated generally that these words import actual physical occupation by the person applying for and receiving a grant. They do not, however, mean exclusive occupation in the sense that such person and no one else, not even his wife and children, should live in the house. Such person should, in general, be the rated occupier and if the house and lands (even though under £25 poor law valuation) are assessed to income tax under Schedule A and Schedule B (in the case of the lands) the assessment should be on such person.

3. Leaving out an assessment for income tax there could, of course, be cases where A. having died intestate, left one son, B., who continued to live in the house for which later on a grant for reconstruction was sought. The house even with only a strip of land by way of garden might have been registered in A’s name under the Local Registration of Title (Ireland) Act, 1891, and the registration of A. may never have been changed. B. having paid rates (the receipts for which may be in A.’s name or given to “the Representative of A.”) for ten, fifteen or twenty years applies for a grant for reconstruction and is clearly entitled to receive it. But take the case where A. leaves a widow and children or children alone all or some of whom continue to reside in the house. In such a case the words “in his own occupation” cannot be applied either to the widow alone or to any one of the children alone; probably the rule in the Interpretation Act that the singular includes the plural, would be applicable so that the word “his” is equivalent to the word “their” but in such a case all of these persons would have to give a receipt for a grant as a grant cannot be made to any one of them (in the absence of a written authority from the others) and a receipt to be effective would have to be signed by all. This merely indicates the difficulty of interpreting these words without the facts to which they are to be applied and, as indicated in par. 2 above, no further general indication can be given than that in par. 2.

4. It may be added that not dissimilar expressions, such as “exclusive occupation”, “actual use or occupation”, “actual personal occupancy” and “separate occupation” are used in other statutes but decisions on those expressions turn on the facts of the particular case. A case relating to income tax is the strongest as it dealt with the word “occupier” alone.

This case is Bach v. Daniels (1925) I.K.B. 526, where Scrutton, L.J. in considering the liability of an occupier to Sch. B tax said at p. 541: “Schedule B. is levied on occupiers, and ‘occupiers’ … are defined as persons having the use of the land. The term is probably used in the same sense as in the law of rating. That sense may be collected from the judgments of Lush, J. in Reg. v. St. Pancras Assessment Committee and of Buckley, L.J. in Liverpool Corporation v. Chorley Assessment Committee and appears to involve possession of a permanent character such that trespass could be brought by the occupier with the enjoyment of a benefit from the land. Now it is clear that at common law, for the same land, though hardly for the same portion of it, two persons may be in possession at the same time, and each can bring trespass. In the case of a grant by the owner of the soil of the right to herbage, vestura terrae, or growing crops, the owner can bring trespass for damage to his right to the soil; the person having the right to the herbage for damage to the herbage or crops; but neither could bring trespass for damage to the other’s right”. The case of Borwick v. Southward Corporation (1909) L.K.B. 78, was one of liability for rates where premises, although unoccupied in the ordinary sense of the term, were kept by a manufacturer as a stand-by in case his manufacturing premises should be destroyed by fire. These premises were only partially fitted and were kept closed and never used by the manufacturer. The case is referred to only because Alverstone, C.J. refers to a man “using premises in the sense of having them ready for his own occupation” because the premises could have been let but it was admitted that no attempt was ever made nor was it ever intended that they should be let. In the same case, Bingham, J. said at p. 84 “Cases of this kind depend much more on fact than on law. Whether a man ‘occupies’ or not is in each case a question of intention to be ascertained with reference to the particular circumstances … Occupation is and must always be a mere question of fact which may involve a question of intention, and the only question of law is whether there is evidence which can reasonably support the finding, whatever it may be.”

In that case the Lord Justice was dealing only with the word “occupier” but where, as in this instance, the occupation is qualified with the words “his own” it is suggested that the legislature intended to limit the class of occupier to an ascertained person with well-defined rights and that no other person who might in some circumstances be an occupier or have some occupation rights should be entitled to a grant for reconstruction.

These cases indicate the difficulty of stating generally when a house might be said to be “in his own occupation” without the relevant facts. If further authority were required for this it will be found in the cautionary observations of Gibson & Holmes, J.J. in the case of Guardians of Middleton Union v. McDonnell (1896) 2 I.R. 228.

19th November, 1941

I agree and have nothing to add.

(Initld.) K. O’H.H.,

21/11/41.

Attorney-General.

With reference to your opinion of the 21st instant (2409/41) regarding the interpretation of the expression “in his own occupation” in Section 5 (1) (b) of the Housing (Financial and Miscellaneous Provisions) Act, 1932, I am directed by the Minister for Local Government and Public Health to state, for your information, that the facts of the particular case which gave rise to the request for your opinion were as follows:—

Kate McDermott, widow of a postman, applied for a grant for the reconstruction of the house she was living in. She applied as a “small farmer”. Her deceased husband who was “owner in fee” was rated for house and one acre 3 roods and 37 perches of land, P.L.V. £1 2s. 0d. She had, in addition, 10/- per week from the Post Office. She was told that she could not be regarded as a small farmer but that if she had a son, who resided in the house and who did agricultural work for hire, he should make application for the grant. In these circumstances her son, Patrick, who is an “agricultural labourer” applied for and was paid a grant of £39.

Mrs. McDermott’s late husband died intestate and no Letters of Administration were taken out. The family at the time grant was made consisted of widow, one son (Patrick) and four daughters (two of whom were living in the house).

(Sgd.) J. HURSON,

23rd November, 1941.

Attorney-General.

1. The deceased postman is stated to have been owner in fee and on this basis if Patrick McDermott was his only or eldest son the grant was rightly made to Patrick. My previous minute was written on the assumption that most, if not all, such applications would be in respect of registered land it being most unusual to find pure fee simple property in such circumstances. It should be noted, however, that the owner of registered land is owner in fee simple but that the land does not descend in the way pure fee simple does. Accordingly, paragraph 3 of my minute, dated 19th November, is quite correct in the case of registered land and the statement that the grant was rightly made to Patrick is on the basis that this house was pure fee simple.

2. With reference to paragraph 3 of my minute, dated 19th November, where mention is made of a number of persons living in a house and the necessity for all of them giving a receipt for a grant, it is as well to make it clear that the other condition of section 5 (1) (h) must also be complied with. Thus, if one of such persons were a sister of the others and lived with them but if she was employed (say) in a shop and did not live by the pursuit of agriculture or was not an agricultural labourer the conditions of par. (h) would not be complied with so that a receipt by all of such persons would not be effective.

(Initld.) M.D.

25th November, 1941.

I agree.

(Initld.) K. O’H.H.

27/11/41.