Social Welfare Appeal G0113

Title of Payment: Disability Allowance

Date of Final Decision: 29 May 2020

Keywords: Disability Allowance; EU Citizenship Directive; Right to Reside; Dependant; Family Member; Habitual Residence Condition

Organisation who represented the Claimant: KOD Lyons

Casebase No. G0113

Case Summary

 This case concerned judicial review proceedings brought following a decision of a Chief Appeals Officer refusing an application for disability allowance – Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R.

The applicant was a Romanian national, Ms. Voican, who had been living in Ireland since 2017.  Ms. Voican lived with her daughter, a dual Irish and Romanian citizen.  Ms. Voican had the right to live in Ireland under the EU Citizenship Directive (the “Directive”) as she was a dependant relative of an EU worker (her daughter).  Ms. Voican applied for disability allowance and her application was refused on the basis that her right to reside in the State was predicated on her continued dependence upon her daughter.  This decision was subsequently upheld on appeal and Ms. Voican brought judicial review proceedings before the High Court.

The State argued that Ms. Voican had established her right to reside in Ireland on the basis of her dependence on her daughter.  Further, the State argued that this dependence needed to be continuing in order for this right of residence to continue.  The State sought to make the case that if Ms. Voican received disability allowance, she would no longer be dependent upon her daughter and as a result she would no longer fulfil the requirements of the Directive.  The State noted that the domestic legislation provided that the right of residence afforded to EU citizens under the Directive was conditional on the relevant person not becoming an “unreasonable burden on the social assistance system of the State” and contended that Ms. Voican being granted disability allowance would represent such a burden.

Ms. Voican argued that the European Communities (Free Movement of Persons) Regulations 2015[1] (the “Domestic Regulations”), which transposed the Directive into Irish law, were inconsistent with the Directive on the basis that it did not impose a condition that a family member of a migrant worker be self-sufficient.  As such, Ms. Voican argued that the domestic regulations were an unlawful transposition of the Directive.  Ms. Voican also argued that the refusal of her claim for disability allowance was inconsistent with the equal treatment imperatives under the Irish Constitution and the European Convention on Human Rights as the decision to refuse her claim for disability allowance discriminates against her on the basis of her nationality.

The Court rejected the State’s arguments and quashed the decision of the Chief Appeals Officer to refuse Ms. Voican’s claim for disability allowance.

The Court ordered the Chief Appeals Officer to reconsider Ms. Voican’s claim which was to be carried out within 6 weeks of the perfection of the High Court Order.  The Court made its decision based solely on interpretation of the Directive and did not need to consider Ms. Voican’s additional argument in relation to the principles of equal treatment contained in the Irish Constitution and the European Convention on Human Rights.  The Court’s reasoning largely turned on the definition of “family member” under Article 2(2)(d) of the Directive and whether this article required that “ongoing and continuing dependency”.

Key Conclusions

There is no self-sufficiency requirement under the Directive in respect of a dependent family member of a migrant worker who is lawfully resident in the State for a period of more than three months to reside in an EU Member State.  Under the Directive the person claiming social assistance has an entitlement to equal treatment in their own right.

[1] S.I. 548 of 2015