Irish Supreme Court finds disability allowance is a special non-contributory cash payment and is therefore non-exportable
The Irish Supreme Court has ruled that disability allowance is appropriately classified as a special non-contributory cash payment under Article 70(2) of Regulation 883/2004 (the 2004 Regulation). The Department of Social Protection is thus entitled to impose a habitual residence requirement and the appellant is not entitled to receive the allowance after returning to Romania.
The appellant worked in Ireland for three years. He was diagnosed with MS when he returned to Romania and has remained there in order to receive medical treatment. His application for disability allowance was refused on the basis that he was not habitually resident in Ireland. In May, the Supreme Court held that he was entitled to judicially review this decision. The Court deferred a final decision pending submissions on whether the disability allowance was correctly categorised as a special non-contributory cash allowance under the 2004 Regulation. The appellant argued that it should be classified as a sickness benefit, which would mean that it would be exportable.
In determining whether the disability allowance was appropriately categorised, the Court considered its purpose. If its purpose was medical as opposed to maintaining a subsistence level of income, then it would be incorrectly categorised. The Court held that the purpose of the allowance was to improve “quality of life only in the sense that it is intended to protect against poverty.” Its purpose was not to improve health, “save insofar as health may be endangered by poverty.” The allowance was not intended to assist with recovery from the disability or to assist with any needs or healthcare costs associated with the disability.
Under the 2004 Regulation, an individual may be disqualified from receiving the allowance if they fail to comply with a requirement to attend a medical examination or treatment or with a medical practitioner’s instructions. The Court held that the medical examinations provided for were a control mechanism to ensure eligibility for the allowance and could not be interpreted as conferring a right to medical care or treatment. Even where a medical practitioner’s instructions were not followed, the recipient could not be disqualified if engaged in employment or training, and there was “no requirement that the employment or training in question should be assessed in terms of medical benefit.”
Under the means test for the allowance, earnings from employment may be disregarded up to a prescribed amount. Until recently, the employment had to be of a rehabilitative nature, but this was never interpreted as relating to medical rehabilitation. The Court held that the disregard “simply mirrors the position in relation to other social assistance payments.”
Due to the above reasons and the case law of the Court of Justice of the European Union (CJEU) discussed in the previous Supreme Court judgment, the Court concluded that the disability allowance was correctly classified as a special non-contributory cash allowance. As a result, the Department of Social Protection was entitled to impose a habitual residence requirement. In light of this conclusion, the Court refused to refer any question to the CJEU as to the validity of the allowance’s inclusion the annex of the 2004 Regulation.
Click here for the full decision in Petecel v The Minister for Social Protection and the Attorney General.
Click here for a previous PILA Bulletin article on the decision enabling the appellant to seek judicial review.