Irish Supreme Court rules applicant for disability allowance entitled to seek judicial review on point of EU law prior to exhausting all statutory remedies
The Irish Supreme Court has found that an applicant for disability allowance was entitled to seek judicial review on a point of EU law prior to exhausting all statutory remedies.
The applicant, Mr. Petecel, is a young Romanian national who lived and worked in Ireland from 2008 to 2011. He was diagnosed with multiple sclerosis in Romania in 2011 and, since then, has remained mostly in Romania for his medical care. An application for disability allowance was refused in 2016 as he was determined not to be resident in the State.
Mr. Petecel sought a review of the decision on the basis that he was habitually resident in Ireland and, under EU Law, that disability allowance was a ‘sickness benefit’ and therefore ‘exportable’, allowing Mr. Petecel to be paid outside the State. These arguments were rejected. As the payment was categorised as a ‘special non-contributory cash benefit’, the payment could not be deemed to be exportable for the purposes of EU Law.
Mr. Petecel issued judicial review proceedings in the High Court, also seeking a reference to the Court of Justice of the European Union (CJEU) for clarification of EU Law. The High Court refused to consider the substantive issues raised in the case as it held that the applicant had failed to exhaust all statutory remedies i.e. an appeal to an Appeals Officer and to the Chief Appeals Officer.
In appealing the decision of the High Court, Mr. Petecel argued that he should not be obliged to pursue the appeals process in circumstances where it cannot, as a matter of law, result in a finding in his favour on one of the key issues that he has raised – that is, whether Irish disability allowance has been incorrectly classified.
The Supreme Court firstly looked at whether there was jurisdiction to grant a remedy on the issue of classification of the payment within the appeals process and, if an exception was allowed to the requirement to exhaust all statutory remedies, whether the question should be referred to the CJEU.
The Court held that the task of the various officers within the social welfare appeals process was to apply the social welfare code to claims before them on the basis that national legislation is valid, and not to interpret that legislation in reference to EU law. Furthermore, an administrative authority cannot declare EU law invalid, as that is a power reserved for the CJEU. As such, Mr. Petecel could not have obtained a favourable decision on the classification issue within the social welfare appeals process.
In addition, as the statutory appeals process had no jurisdiction to address the issue of classification of disability allowance, and was bound the assume its validity, it would be a point of law that did not properly arise in the decision and, therefore, should not be the subject of an appeal from that decision on a point of law to the High Court. As such, the case was found to come within the exception in Koczan v Financial Services Ombudsman and EMI Records (Ireland) Ltd v The Data Protection Commissioner where the statutory appeals process cannot provide the remedy sought.
The Court noted the second issue under appeal regarding habitual residence could have been dealt with under the statutory appeals process. However, the decisions of Koczan and EMI provide that the appeals process must be able to deal with all issues raised in the case in order to avoid proceedings being split.
The Court therefore held that Mr. Petecel was entitled to bring judicial review proceedings. The Court, however, sought further submissions from the parties on the question of reference to the CJEU, particularly as to whether there is existing jurisprudence from the court which might determine the issue.
Click here for the full decision.
Click here for a previous PILA Bulletin article on the grant of leave to appeal.