Mocanu v The Chief Appeals Officer & Social Welfare Appeals Office

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Allen
• Judgment Date: 11 July 2023
• Neutral Citation: [2023] IECA 176
• Docket Number: Appeal Number: 2022/253

Between:

Cornelia Mocanu

Appellant

and

The Chief Appeals Officer Social Welfare Appeals Office

Respondent

[2023] IECA 176

Donnelly J.

Ní Raifeartaigh J.

Allen J.

Appeal Number: 2022/253

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 11 ^th day of July, 2023

Introduction

1 . This is an appeal against the judgment of the High Court (Hyland J.) delivered on 23 ^rd September, 2022 ( [2022] IEHC 577) and consequent order made on 11 ^th October, 2022 refusing to extend the time for a statutory appeal against a decision of the Chief Appeals Officer of the Social Welfare Appeals Office.

2 . The impugned decision of the respondent was made on 8 ^th January, 2021. The appellant's originating notice of motion was issued on 7 ^th April, 2021 and served on 21 ^st April, 2021. The time limit prescribed by O. 84C, r. 2(5) of the Rules of the Superior Courts is twenty-one days.

3 . At the date of issue of the originating notice of motion the time for an appeal had long passed but from the time the papers were filed in the High Court, the appellant's focus was on the arguments she would make in support of the intended appeal rather than on the extension of time which she needed if her appeal was to be entertained. If the hope or expectation was that the perceived merits of the intended appeal would somehow excuse the fact that it was out of time, that was mistaken.

4 . The extension of time which the appellant needed was (bar further and other relief and costs) the last of the reliefs sought by the originating notice of motion and in the notice of appeal to this court, the High Court judge's refusal of the extension of time was the last of the grounds of appeal. However, the High Court judge correctly identified the first issue to be dealt with as the appellant's need for an extension of time.

Background

5 . The appellant is a Romanian national who has resided in Ireland since about 12 ^th October, 2011. She lives with and is dependent on her adult daughter, who is a Romanian citizen living and working in the State. On 15 ^th January, 2020 the appellant, in anticipation of attaining pensionable age in the following April, applied to the Department of Social Welfare for what is nowadays called a State Pension (Non-Contributory). The application was refused inter alia on the ground that although the appellant might have been living in the State, she had failed to prove that she had a right of residence in the State. On appeal by the appellant to the Social Welfare Appeals Office, the decision of the Deciding Officer was upheld.

6 . The essence of the decision of the Appeals Officer, as set out in the judgment of the High Court, was that:-

“…The [European Communities (Free Movement of Persons) Regulations 2015] provide in Regulation 6(5) for an EU citizen to derive a right to reside in another Member State from another family member, provided they inter alia, are a direct family member in the ascending line, of an EU citizen exercising EU Treaty rights. In this case this would be the Appellant's daughter who is working in Ireland since at least 2011. However, in order to establish this right the Appellant must demonstrate pre-dependency in her country of origin and continued dependence in Ireland. Furthermore, such a right is conditional on continued employment by the employed EU Citizen. The evidence on file has not established such a pre-dependency existed between the Appellant and her daughter prior to the former's arrival in Ireland. On the contrary the Appellant has stated that she supported herself by working. Additionally, the Appellant was living with her Spouse in their privately owned apartment.”

7 . The foundation of the appellant's intended appeal to the High Court was the argument that there was no requirement in Article 2(2) of the Citizens' Directive 2004/38/EC or in art. 3(5)(b) of the European Communities (Free Movement of Persons) Regulations, 2015 ( S.I. No. 548 of 2015) that she must demonstrate pre-dependency in her country of origin to qualify as a dependent direct relative of her daughter, who is an EU citizen worker.

8 . On 31 ^st March, 2023 in a case of Holland v. Minister for Justice and Equality [2023] IECA 74, this court, in a decision of Binchy J., with which Faherty and Ní Raifeartaigh JJ. agreed, decided that in the case of a relative in the descending line, there is a requirement of pre-dependency in the country of origin. On the hearing of this appeal on 17 ^th April, 2023, the basis of the intended appeal was modified to the proposition that this did not apply to relatives – like the appellant – in the ascending line.

The appellant's case for an extension of time

9 . The originating notice of motion set out three reasons for which it was contended that the extension of time should be granted. It was said, first, that there was good and sufficient reason for extending the time and that an extension would not result in an injustice to the respondent. Secondly, it was said, a member of the appellant's household had tested positive for COVID-19 and in consequence she and her daughter and son-in-law on whom she depends were self-isolating for fourteen days, which coincided with the delivery of the respondent's decision on or about 11 ^th or 12 ^th January, 2021. Thirdly, it was said, the appellant formed a clear intention to challenge the decision within the prescribed time in circumstances in which she had authorised her daughter to instruct a solicitor by leaving voicemail messages and sending an e-mail on 17 ^th January, 2021.

10 . The application to the High Court was initially grounded on an affidavit of the appellant's solicitor, Ms. Carol Sinnott, sworn on 2 ^nd April, 2021. An affidavit of Mr. Csongor Ferencz, an interpreter, and a short affidavit of the appellant, confirmed that Ms. Sinnott's affidavit had been read over to the appellant in the Romanian language and understood by her.

11 . Ms. Sinnott set out the appellant's background and circumstances in detail and gave a comprehensive account of her application to the Social Welfare Services Office and her appeal to the Social Welfare Appeals Office. Ms. Sinnott exhibited all of the correspondence in relation to the application and appeal and – as far as could be ascertained – all of the documentation that had been submitted to both offices. In the pre-penultimate paragraph of her affidavit, Ms. Sinnott deposed that:-

“Between 9 ^th and 19 ^th January, the Appellant was self-isolating at home because a member of her household (her son-in-law) had tested positive for Covid-19. On 17 ^th January 2021 the Appellant's daughter tried to contact several solicitors by phone. She left voicemail messages but was never called back. Also the Appellant's daughter sent an email to one solicitor on 17 ^th January 2021 (which I have seen but not exhibited hereto in circumstances where it is a privileged document); I am instructed that again no reply was ever received to this email either. I say and believe that there is good and sufficient reason for extending time to bring this appeal in the foregoing circumstances. I say that it is further relevant to this Honourable Court's determination of the Appellant's application to abridge (sic.) the time-limit that she did not seek to pursue an application for judicial review, though she would have been within time to do so, in circumstances in which she was advised that the statutory appeal mechanism may be considered to be the more appropriate remedy in the particular circumstances of this case.”

12 . Following objection by the respondent that Ms. Sinnott's affidavit was hearsay, that affidavit was redrafted to be sworn by the appellant, translated into Romanian, and sworn by the appellant in English and Romanian on 22 ^nd June, 2022, when an affidavit of a translator verifying the translation was also sworn. In the pre-penultimate paragraph of her affidavit, the appellant deposed (only) that:-

“Between 9 ^th and 19 ^th January, I was self-isolating at home because a member of my household (my son-in-law) had tested positive for Covid-19. On 17 ^th January 2021 my daughter tried to contact several solicitors by phone. She left voicemail messages but was never called back. Also my daughter sent an email to one solicitor on 17 ^th January 2021 (which is not exhibited hereto in circumstances where it is a privileged document); no reply was ever received to this email either.”

13 . On 15 ^th October, 2021 an affidavit of Mr. Paul Bourke, Appeals Officer, was filed in opposition to the application. As far as is material for present purposes, Mr. Bourke referred to the Points of Opposition – which were filed on the same date – by which the respondent had indicated its preliminary objection that the appeal was out of time and its objection to an extension of time. He noted – without objection that it was hearsay – the evidence of the appellant that her daughter had sought assistance from a number of solicitors in January, 2021 but observed that no explanation had been offered for the delay between January and April, 2021. In the circumstances, he said, he was advised that there was no basis on which an extension of time might be granted.

14 . On 12 ^th November, 2021 an affidavit of Claudio Cojanu was filed on behalf of the appellant. Mr. Cojanu is the appellant's son-in law. Mr. Cojanu deposed that the appellant had received the respondent's decision rejecting her appeal on or about 12 ^th January, 2021. The appellant had not previously said when she received the decision other than inferentially that it must have been before 17 ^th January, 2021 when her daughter made her phone calls and sent her e-mail. Mr. Cojanu said that between 9 ^th and 19 ^th January, 2021 they were all self-isolating at home because he had tested positive for COVID-19. He said that he could clarify that...