Social Welfare Appeal G0109

This is one of two judgments delivered by the Supreme Court in the case of Petecel concerning the refusal of an application for Disability Allowance under the Social Welfare Consolidation Act 2005. This particular decision deals with the procedural issue as to the appellant’s entitlement to seek judicial review in the absence of having exhausted the statutory appeals process. The substantive issue of the legal classification of Disability Allowance is dealt with in a later judgment as detailed in Casebase Report No. G0110.

The appellant was Catalin Petecel, a Romanian national who lawfully lived and worked in Ireland from 2008-11. He was diagnosed with MS (multiple sclerosis) in 2011 and travelled to Romania for treatment. He returned to the State briefly from February to April 2012 but otherwise has remained in Romania ever since. While there, his condition deteriorated to the point that he was physically unresponsive and being cared for full-time by his mother.

In 2016, Mr. Petecel applied through his legal guardian for Disability Allowance pursuant to section 210(1) of the 2005 Act. The deciding officer refused his application on the basis that he was not resident in the State. The appellant’s solicitors sought a review of that decision pursuant to section 301 submitting that Mr. Petecel was still habitually resident in the State, as his absences were for the purpose of receiving medical care. Furthermore, it was argued that Disability Allowance was a “sickness benefit” for the purpose of Article 3(1)(a) of EU Regulation 883/2004 and therefore “exportable”. The request for a revision was refused by a second deciding officer on 9^th June 2017.

Mr. Petecel sought to challenge the said refusal by way of judicial review seeking to quash the relevant decisions and obtain additional declaratory relief. The appellant grounded his leave application on two points. First, he submitted that the deciding officer had erred in finding the appellant was not habitually resident in Ireland. Second, he contended that the State had incorrectly categorised Disability Benefit as a non-exportable “special non-contributory benefit” and sought a preliminary reference to the Court of Justice of the European Union on that basis. 

Despite all aspects of the case being fully argued in the High Court, Barrett J. declined to consider the substantive issue raised in circumstances where Mr. Petecel has failed to exhaust the statutory appeals process. He found that the 2005 Act contained adequate remedies in the form of a de novo appeal to an appeals officer (section 311), a revision by the Chief Appeals Officer (section 318), and an appeal on a point of the law to the High Court (section 327). Even if it was inevitable that the case would end up in the High Court in some shape or form, Barrett J. was of the opinion that it should do so at the end of the appeals process.

The Court of Appeal was prepared to accept that judicial review was not preconditioned on engaging in a futile or pointless appeals process. Costello J. was of the view, however, that the issues of EU law raised by Mr. Petecel could be dealt by way of a reference to the High Court by the Chief Appeals Officer pursuant to section 306 of the 2005 Act or an ordinary appeal on a point of law. The Court was influenced by the fact that the High Court would have a broader jurisdiction in the context of a statutory appeal than in judicial review to find that the appellant was entitled to Disability Allowance. 

Ultimately, the Supreme Court determined that the appellant was entitled to bring judicial review proceedings in circumstances where the question of the classification of Disability Allowance was not one which could be properly ventilated through the statutory appeals process. Further, it would not have been appropriate to bring an appeal on a point of law as the High Court’s jurisdiction in such matters is confined to the interpretation of statute. Acknowledging that the habitual residence might have been more appropriately addressed within the Departmental process, O’Malley J. held that this did not act as a barrier to judicial review.