Petecel v Minister for Social Protection
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] IESC 58 |
| Court | Supreme Court |
| Docket Number | [Supreme Court Appeal No: 38/2019] |
| Date | 18 July 2019 |
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[2019] IESC 58
[Supreme Court Appeal No: 38/2019]
THE SUPREME COURT
Judicial review – Leave to appeal – Disability allowance – Applicants seeking leave to appeal to the Supreme Court against a decision of the Court of Appeal – Whether the applicants had raised a point of law of general public importance
Facts: The applicants, Mr and Ms Petecel, sought leave to appeal to the Supreme Court against a decision of the Court of Appeal upholding the decision of the High Court to dismiss their claim for judicial review reliefs. Having conducted an oral hearing on the application, the Supreme Court reserved judgment. The proceedings stem from the refusal of an application by the first applicant, the Minister for Social Protection, for disability allowance. Both the High Court and the Court of Appeal held that he should not have sought judicial review, on the basis that he had not fully utilised the statutory review and appeals procedures set out in the Social Welfare Consolidation Act 2005 and had therefore failed to exhaust an appropriate alternative remedy. In the original written application for leave, the applicants submitted that two issues arose, being the categorisation of disability allowance in Annex X of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, O.J. L166, 30.4.2004 and the habitual residence of an EU national who is outside the State due to illness. In oral argument counsel accepted that the first applicant did not have a right of residence in the State. The case came down to the issue of exportability of the payment, which in turn depends on the validity of its categorisation in the Regulation. The applicant again submitted that the appeals officers are bound to accept that the categorisation is valid and therefore do not have jurisdiction to grant any form of relief. In those circumstances, it was argued that an EMI-type exception arises: EMI Records (Ireland) Ltd & Ors v The Data Protection Commissioner [2013] 2 IR 669. The applicants continued to maintain that, regardless of the jurisdictional issue, it was appropriate to seek judicial review, rather than to invoke the appeals mechanism, in social welfare cases involving complex questions of EU law.
Held by O’Malley J that the applicants had raised a point of law of general public importance and that she would accordingly grant leave. She held that the leave would be limited to two questions. She did not consider as viable the proposition that the obligation to exhaust remedies should not extend to cases involving complex issues of law. Therefore, she held that the first question was whether the lack of jurisdiction within the statutory social welfare appeals process to grant any form of remedy in respect of the allegedly invalid categorisation of disability allowance gives rise to an exception to the general obligation to exhaust statutory remedies before seeking judicial review.
O’Malley J held that it was common case that, while the High Court might be satisfied that a challenge to the categorisation was groundless, it would not have jurisdiction to invalidate any part of an EU Regulation if it felt that the challenge was justified or was in doubt as to the issue; in the latter circumstances the only option would be to refer the question to the Court of Justice. O’Malley J held that since the categorisation was the only matter in dispute between the parties, she would grant leave on the question whether, if the answer to the first question is “yes”, the Supreme Court should refer a question to the Court of Justice on the substantive issue of validity rather than remitting the matter to the High Court; this would involve hearing arguments as to the strength of the contention that disability allowance is wrongly categorised in Regulation 883/2004, and as to whether it could be appropriate for the Supreme Court to refer a question to the Court of Justice where the substantive issue has not been considered in the High Court.
Leave to appeal granted.
The applicants have sought leave to appeal to this Court against a decision of the Court of Appeal (see Petecel v Minister for Social Protection [2019] IECA 25) upholding the decision of the High Court (see Petecel v Minister for Social Protection [2018] IEHC 238) to dismiss their claim for judicial review reliefs. Having conducted an oral hearing on the application, the Court reserved judgment.
The proceedings stem from the refusal of an application by the first named applicant (hereafter ‘the applicant’) for disability allowance. Both the High Court and the Court of Appeal held that he should not have sought judicial review, on the basis that he had not fully utilised the statutory review and appeals procedures set out in the Social Welfare Consolidation Act 2005 and had therefore failed to exhaust an appropriate alternative remedy.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.
The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115.
It should be noted that any ruling on an application for leave is a decision particular to that...
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