Petecel v The Minister for Social Protection

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date14 May 2020
Neutral Citation[2020] IESC 25
Docket Number[Supreme Court Appeal No. 2019/38]
CourtSupreme Court
Date14 May 2020
BETWEEN
CATALIN PETECEL (SUING THROUGH HIS MOTHER AND LEGAL GUARDIAN MARIA PETECEL)
APPELLANTS
AND
THE MINISTER FOR SOCIAL PROTECTION IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2020] IESC 25

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

[Supreme Court Appeal No. 2019/38]

THE SUPREME COURT

Disability allowance – Judicial review – Appeal on a point of law – Appellant seeking judicial review – Whether the appellant was obliged to pursue the statutory appeal process available to him under the Social Welfare Consolidation Act 2005

Facts: The appellant, Mr Petecel, a Romanian national, applied for disability allowance under the Social Welfare Consolidation Act 2005. The first respondent, the Minister for Social Protection, decided to refuse the application. The appellant appealed to the Supreme Court against a decision of the Court of Appeal ([2019] IECA 25) upholding the decision of the High Court ([2018] IEHC 238) to dismiss his claim for judicial review reliefs. The appellant had failed, without consideration of his substantive arguments, because he had been held not to have exhausted the statutory appeal process available to him under the 2005 Act. That process involved an internal Departmental system of reviews and appeals, with, ultimately, an appeal to the High Court on a point of law. The appellant’s position was that he should not be obliged to pursue the process in circumstances where he said that it could not, as a matter of law, result in a finding in his favour on one of the key issues that he had raised – that is, whether the Irish disability allowance had been incorrectly classified in the relevant European Union instrument intended to coordinate the social security systems of the Member States (Regulation 883/2004).

Held by O’Malley J that the appellant was entitled to bring these judicial review proceedings as the issue he had raised as to the validity of the classification of disability allowance was one that could not be decided in the internal appeals structure and would, for that reason, not have been appropriate to an appeal on a point of law.

O’Malley J proposed that the parties should be invited to make further submissions on the earnings disregard and the disqualification criteria, by reference to the CJEU jurisprudence.

Parties invited to make further submissions.

JUDGMENT of Ms. Justice Iseult O'Malley delivered the 14th day of May 2020.
Introduction
1

The appellant in these proceedings is a young Romanian national, who has most unfortunately contracted a grave illness. He now resides in Romania and requires constant care. The proceedings relate to a decision by the first named respondent to refuse his application for disability allowance under the Social Welfare Consolidation Act 2005 (“the Act of 2005”). The appeal is against a decision of the Court of Appeal ( [2019] IECA 25) upholding the decision of the High Court ( [2018] IEHC 238) to dismiss his claim for judicial review reliefs.

2

In brief, the appellant has failed thus far, without consideration of his substantive arguments, because he has been held not to have exhausted the statutory appeal process available to him under the Act of 2005. That process involves an internal Departmental system of reviews and appeals, with, ultimately, an appeal to the High Court on a point of law. The appellant's position is that he should not be obliged to pursue the process in circumstances where he says that 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 the Irish disability allowance has been incorrectly classified in the relevant European Union instrument intended to coordinate the social security systems of the Member States ( Regulation 883/2004).

3

The classification, as it currently stands, has the effect that the payment is not “exportable” – that is, that it is not payable to a person resident outside the State. It is common case that neither the Departmental appeal system provided for under the Act, nor a national court (whether dealing with the matter in a statutory appeal on a point of law or in judicial review proceedings), would have jurisdiction to declare the regulation invalid insofar as it adopts the classification. Such a finding could be made only by the Court of Justice of the European Union. Further, it is common case that the Departmental officials operating the appellate machinery under the Act do not have the power to refer questions for preliminary ruling by the CJEU. There is a degree of disagreement between the parties as to the powers of the High Court when hearing a statutory appeal, the resolution of which may have further implications for the utility of the statutory system in circumstances such as these.

4

The appellant argues that in the circumstances he is entitled to take the speedier option of invoking the judicial review jurisdiction of the High Court in order to seek a reference to the CJEU on this issue, rather than having to first go through what he considers a futile sequence of appeals. However, when it comes to consideration of this argument it will have to be borne in mind that the classification point was not the only issue raised by the appellant. He was also maintaining, up to the stage at which he was seeking leave to appeal to this Court, that the respondent's officials erred in finding that he did not satisfy the habitual residence condition imposed by the Act of 2005.

5

The first issue to be determined by this Court is whether there is jurisdiction, within the Departmental process and on appeal to the High Court, to grant any form of remedy in respect of the allegedly invalid categorisation. If there is not, that fact might give rise to an exception to the general obligation to exhaust statutory remedies before seeking judicial review. If this issue is resolved in the appellant's favour, the Court will consider whether it would be appropriate to refer a question to the Court of Justice of the European Union on the substantive issue of the validity of the payment classification, rather than remitting the matter to the High Court.

6

Despite the order in which the issues were stated in the determination, it may be helpful to start by briefly describing the benefit and the EU law context, followed by reference to the submissions in the dispute about the classification. The statutory provisions relating to the decision-making process in the Department of Social Protection, provided for in Part 10 of the Act as amended, and the circumstances in which the impugned decision was made, will then be set out to explain the context in which the procedural issue arises.

Disability Allowance
7

Disability allowance is provided for in Chapter 10 of the Act of 2005 as amended. In brief, s.210 provides that the allowance “shall be payable” to a person of working age who, by reason of a specified disability, is substantially restricted in undertaking employment of a kind that would be suited to that person's age, experience and qualifications in the absence of the disability and whose weekly means do not exceed the maximum amount payable to a qualified person with no means. Regulations made under the Act ( S.I. 142/2007) set out the criteria for eligibility in more detail. A person is qualified if he or she suffers from “an injury, disease, congenital deformity or physical or mental Illness” which has continued, or, in the opinion of the deciding officer or appeals officer, may reasonably be expected to continue, for a period of at least one year.

8

The allowance is payable whether or not the person is availing of a service for the training of a disabled person under s.68 of the Health Act 1970 (which requires health authorities to make available a service for the training of disabled persons for employment suitable to their condition of health and for the making of arrangements with employers for placing disabled persons in suitable employment). It may also be payable while the person is engaging in a prescribed course of education, training or development, or in employment or training and subject to such circumstances and conditions as may be prescribed (s.210 as amended). It may also be payable to persons who are normally resident in institutions such as hospitals or nursing homes, where the cost of their care and maintenance is met by the State authorities. A person detained for treatment under mental health legislation also remains entitled to the allowance.

9

The payment is means-tested, being payable to persons whose weekly means do not exceed the figure set for the full amount of the allowance, and the rate of payment will be reduced in accordance with such means as the person has. However, a disabled person in rehabilitative employment can earn up to a prescribed figure without losing entitlement. It will be increased in accordance with prescribed formulae where the claimant has qualified children or adults. It does not depend upon having a previous record of PRSI contributions and the unchallenged evidence is that it is funded from general taxation rather than through contributions.

10

As with many welfare payments, the means test includes an “earnings disregard”. This means that if the recipient has some income from employment or self-employment, that income will be disregarded up to a prescribed amount for the purpose of calculating their means. Until recently, the rules relating to disability allowance specified that the employment or self-employment had to be “of a rehabilitative nature” (Rule 1(2)(b)(viii) of Part 2 of Schedule 3 of the Act of 2005, and rule 147 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 S.I. 142/2007). However, s.20 of the Social Welfare, Pensions and Civil Registration Act 2018 removed those words from the Act and Regulations. A person in receipt of...

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