Petecel v Minister for Social Protection

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Costello
• Judgment Date: 06 February 2019
• Neutral Citation: [2019] IECA 25
• Docket Number: Record No. 2018 421
• Date: 06 February 2019

[2019] IECA 25

THE COURT OF APPEAL

Costello J.

Whelan J.

Costello J.

Kennedy J.

Record No. 2018 421

BETWEEN/

CATALIN PETECEL

(SUING THROUGH HIS LEGAL GUARDIAN MARIA PETECAL)

APPELLANTS/APPLICANTS

- AND -

MINISTER FOR SOCIAL PROTECTION, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS/RESPONDENTS

Judicial review – Disability allowance – Statutory scheme – Appellant seeking judicial review – Whether the appropriate remedy in this case was judicial review in the High Court

Facts: The appellant, Mr Petecel, appealed to the Court of Appeal against the judgment of Barrett J delivered on the 4th May 2018 ([2018] IEHC 238) dismissing the appellant’s application for judicial review. The proceedings related to the appellant’s application for disability allowance under the Social Welfare Consolidation Act 2005 and a decision refusing that application on the 9th June 2017. The appellant argued that the trial judge erred in holding that he was required to exhaust the alternative remedies available under the 2005 Act prior to coming to court. He said Barrett J misapplied the test established by Barron J in McGoldrick v An Bord Pleanála [1997] 1 IR 497. He submitted that the appropriate remedy in this case was judicial review in the High Court, as he could not obtain the remedy he claimed under the statutory scheme.

Held by Costello J that she found no error in the manner in which the trial judge exercised his discretion in this case.

Costello J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Costello delivered on the 6th day of February 2019

1 This is an appeal by the appellants against the judgment of Barrett J. delivered on the 4th May 2018 ( [2018] IEHC 238) dismissing the appellants” application for judicial review. The proceedings relate to the first appellant's application for disability allowance under the Social Welfare Consolidation Act 2005 and a decision refusing that application on the 9th June 2017.

Factual background

2 The first named appellant (‘the appellant’) is a national of Romania. For a period of four years he was resident in the United Arab Emirates. He moved to the State on the 1st April 2008 and he worked in Ireland between the 1st May 2008 and the 15th July 2011. He enrolled in a course at the Athlone Institute of Technology for the academic year 2010/2011 but was withdrawn from the course from the 1st October 2011.

3 On the 28th November 2011 the appellant travelled to Romania for medical treatment where he was diagnosed with multiple sclerosis. He returned to Ireland on the 20th February 2012. He was unable to access the medical treatment he required in Ireland and so he returned to Romania on the 20th April 2012. His condition deteriorated significantly, to the point that he requires 24 hour care and is physically unresponsive. It is common case that the appellant has been in Romania since the 20th April 2012 in the care of his mother, the second named appellant. On the 13th December 2015 the second named appellant was appointed the legal guardian to the appellant.

The application for disability allowance

4 On the 15th September 2016 the appellant applied for disability allowance under the Social Welfare Consolidation Act, 2005 (‘the 2005 Act’). The application was refused by a decision dated the 7th November, 2016 on the grounds that the appellant was not resident in this State. By letter dated the 24th January, 2017 the appellant sought a review of the decision under s. 301 of the 2005 Act. The appellant made two further submissions to the first named respondent on the 23rd March, 2017 and 25th April, 2017. The appellant argued that he had not transferred his habitual residence to Romania, he asserted that his absences from the State were for medical treatment and that this was permitted under the provisions of Articles 1 (k), 19(1) and 20 (1) of Regulation 883/2004. Finally, he asserted that disability allowance was incorrectly categorised in Regulation 883/2004 by this State as a special non-contributory cash benefit in Annex X of the Regulation rather than as a sickness benefit. The significance of this distinction is that if it is classified as a sickness benefit it is exportable, meaning it is payable to the appellant in Romania, whereas it is not if it is listed in Annex X of the Regulation.

5 On the 9th June, 2017 the appellant's application for a review of the decision of the 7th November, 2016 was rejected. It was decided that he was not eligible for disability allowance for the following reasons:-

(i) He had not demonstrated a right to reside in the State under Statutory Instrument No. 548 of 2015 European Communities (Free Movement of Persons) Regulations 2015 as he had not been continuously resident in the State since the 20th April 2012. A person who does not have a right to reside in the State cannot be habitually resident for Social Welfare purposes.

(ii) The length and continuity of residence in the State does not provide for HRC approval as he had left the State on the 20th April 2012.

(iii) He had no employment record in the State since 2011.

(iv) He lived most of his life outside the State and had been living outside the State since the 20th April 2012.

(v) His main centre of interests is outside the State as he lives with his family (parents) in Romania.

(vi) He holds a bank account outside the State.

(vii) The evidence available did not substantiate habitual residence within the State.

Disability allowance – legislative framework

6 Before considering the issues raised in this appeal it is useful to consider the legislative basis for disability allowance and the appeal process set out in the 2005 Act.

7 A disability allowance is created by Part 3, Chapter 10 of the 2005 Act. The allowance may be paid to a person pursuant to s. 210(1):-

(a) who has attained the age of 16 years but has not attained pensionable age;

(b) who is by reason of a specified disability substantially restricted in undertaking employment (in this Chapter referred to as ‘suitable employment’) of a kind which, if the person was not suffering from that disability would be suited to that person's age, experience and qualifications, whether or not the person is availing of a service for the training of disabled persons under s. 68 of the Health Act 1970 and

(c) whose weekly means, subject to sub section (2) do not exceed the amount of disability allowance, (including any increases of that allowance) which would be payable to the person under this Chapter if that person has no means.’

8 In addition, applicants for disability allowance must have a right to reside in the State (subs. (5)) and must be habitually resident in the State. Section 210(9) of the 2005 Act precludes the payment of disability allowance to any person unless the person is habitually resident in the State. Habitual residence is defined by s. 246(1) of the 2005 Act and the criteria for the assessment of habitual residence in ss. 4. Those criteria are:-

(a) the length and continuity of residence in the State or in any other particular country;

(b) the length and purpose of any absence from the State;

(c) the nature and pattern of the person's employment;

(d) the person's main centre of interests, and

(e) the future intentions of the person concerned as they appear from all the circumstances.

The statutory appeals process

9 Part 10 of the 2005 Act provides a comprehensive appeal mechanism against decisions of a Deciding Officer or against a refusal to revise a decision of a Deciding Officer under the 2005 Act. Section 311 enables any person to appeal a decision of a Deciding Officer to an Appeals Officer. That appeal is a full de novo appeal on the facts and the law. Section 318 of the 2005 Act enables the Chief Appeals Officer to revise an appeal decision where it appears that the decision was erroneous by reason of a mistake as to the law or the facts. Section 327 of the 2005 Act provides that any person who is dissatisfied with the decision of the Appeals Officer or the revised decision of the Chief Appeals Officer may appeal to the High Court ‘on any question of law’. In addition to these appeals, the Chief Appeals Officer may refer any question which has been referred to the Appeals Officer, other than in question to which section the 320 applies, for decision of the High Court pursuant to s. 306 of the Act.

The appellant's case

10 The appellant did not appeal the revised decision of the Deciding Officer to an Appeals Officer pursuant to s. 311. Obviously he did not therefore rely upon the further provisions of the appeals code. Instead, on the 17th July, 2017 the...