Court of Appeal Archives

Case Report G0155 – L.A. v The Chief Appeals Officer [2025] IECA 54

Keywords: Disability Allowance, role of judicial review, scope of section 318 appeal, Alternative remedy, Mistake of law or fact, Discretionary bar to judicial review, fair procedures, access to remedy

Organisation who represented the Claimant: Conor Power SC and Joanne Williams BL, instructed by CSHR Solicitors.

Casebase No. Case G0155

Background

The applicant, LA’s, application for Disability Allowance was rejected on two grounds:

that she did not meet the medical eligibility criteria under section 210(1)(b) of the Social Welfare Consolidation Act 2005 (the “Act”), and
that her means, which were assessed to include her spouse’s income, exceeded the threshold.

She appealed this decision to a Deciding Officer and then an Appeals Officer, who both disallowed her appeal on the same grounds. LA then challenged this decision by bringing judicial review proceedings before the High Court, arguing that that her separation from her spouse during the relevant period and the severity of her disability were not properly considered.

LA was successful in the High Court, where the High Court found the means assessment legally flawed and that the Appeals Officer had erred in not taking into account the fact that she had separated from her spouse during that year.

This decision was appealed by the Respondents to the Court of Appeal.

Relevant Legislation:

Social Welfare Consolidation Act 2005 (as amended), in particular:
- Section 210(1)(b) – Medical eligibility for Disability Allowance
- Section 300A(1)(o) – Role of the Medical Assessor
- Section 301 – Revision of decisions by Deciding Officers
- Section 311 – Appeals to the Chief Appeals Officer
- Section 317 – Revision of decisions by Appeals Officers
- Section 318 – Revision of decisions by the Chief Appeals Officer
- Section 327 – Appeal to the High Court on a point of law
- Schedule 3, Part 2, Rule 1(2) – Assessment of means
Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended), in particular Article 137 – Criteria for Disability Allowance
Rules of the Superior Courts (Order 84, Rule 21) (time limits for judicial review applications)

Key Arguments:

The Applicant, LA, argued as follows:

Means Assessment Error: The Appeals Officer wrongly included her spouse’s income despite their separation, failing to consider the likely reduction in financial support.
Medical Eligibility Misjudged: The Appeals Officer did not properly assess the severity of her disability or specify what “lighter and sedentary” work she could perform.
Procedural Fairness: LA was not informed of the option to seek a review under section 318, and her limited English proficiency was not adequately considered.
Judicial Review Was Available: She argued that judicial review was appropriate and not barred by her failure to invoke section 318, relying on T. v. Minister for Social Protection, and contending that the statutory remedies were not mandatory prerequisites.

The Respondent, the State, argued as followed:

Failure to Exhaust Remedies: L.A. did not pursue a review under section 318, which allows correction of errors in law or fact, making judicial review premature.
Adequacy of Statutory Remedies: The Act provides a flexible and comprehensive scheme for revision and appeal, capable of addressing her complaints.
Legal Precedent: Prior judgments (e.g., McDonagh, F.D., Petecel) emphasize the need to use statutory remedies before seeking judicial review.

Decision of the Court of Appeal:

The Court of Appeal overturned the decision of the High Court, holding that LA had failed to exhaust an adequate alternative remedy under section 318 of the Act. Although LA did appeal the initial refusal of her Disability Allowance application to an Appeals Officer, and then sought a review under section 317, the Court of Appeal held that she had not exhausted all available remedies under the 2005 because she did not seek a further revision under section 318.

Key Conclusions:

The Court emphasised that section 318 provides a broad and flexible mechanism for revising decisions of Appeals Officers based on mistakes of law or fact. This remedy was deemed capable of addressing both of LA’s core complaints: (i) the assessment of her means (which failed to account of her marital separation) and (ii) the evaluation of her medical eligibility.

Applying established case law, including McDonagh, F.D., and Petecel, the Court reaffirmed that judicial review should only be pursued where statutory remedies are inadequate. The Court of Appeal addressed the High Court’s reliance on T. v. Minister for Social Protection, where Owens J. had held that failure to invoke section 318 of the Social Welfare Consolidation Act 2005 should not bar judicial review.

The Court of Appeal expressed doubts about the correctness of T. v. Minister for Social Protection, suggesting it may have been decided per incuriam (i.e., without reference to relevant binding precedent). Specifically:

It did not consider key Supreme Court and Court of Appeal decisions such as McDonagh and F.D., which emphasized the breadth and adequacy of the statutory remedies under the Act.
It wrongly assumed that because the Chief Appeals Officer had not initiated a review under section 318 on their own motion, the remedy was not available or effective.
It relied on the fact that the respondent had not been informed of section 318, but the Court of Appeal noted that no evidence had been led on the respondent’s state of knowledge or the impact of that omission

The Court of Appeal emphasised that section 318 is capable of correcting both factual and legal errors and is more accessible in terms of time and cost. Ultimately, the Court of Appeal concluded that LA’s claims, which centered on alleged factual and legal errorsfell squarely within the scope of section 318. As such, judicial review was not warranted, and the appeal was allowed, setting aside the High Court’s decision.

Date of final Decision: 5 March 2025

Observations:

This decision highlights the importance of understanding and using the full range of remedies available under social welfare law before going to court. The Court of Appeal ruled that people challenging decisions regarding benefits (like the Disability Allowance for example) should in the first instance use the internal review options provided for by the Act.

A key implication is the Court of Appeal’s endorsement of section 318 as a sufficiently broad and effective remedy. The judgment clarifies that this provision allows for correction of both legal and factual errors, and its flexibility (e.g., no time limit, capacity to address mixed questions of law and fact) makes it a more suitable forum than judicial review for resolving disputes over benefit entitlements.

The Court of Appeal made clear that judicial review is not the first step but rather a last resort. The Court of Appeal judgment reinforces that judicial review is a last resort and should only be used when statutory remedies are inadequate or unavailable.

If a person skips the internal review process, their case may be dismissed, even if they have valid concerns. This means that claimants/applicants should be informed of their right to request a review and should consider using it, especially when they believe the decision was based on incorrect facts or misunderstood, for example, medical evidence.

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Case Report G0148 – FD v Chief Appeals Officer, Social Welfare Appeals Officer, Minister for Social Protection [2023] IECA 123

Title of Payment: Carer’s Allowance

Date of Final Decision: 24 May 2023

Keywords: Carer’s Allowance; overpayment, summary appeals process; oral hearing; section 317; section 318; alternative remedy; judicial review

Organisation who represented the Claimant: N/A

Casebase No. G0148

Case Summary:

The Court of Appeal in this case was tasked with considering an appeal of the decision of Hyland J in the High Court not to quash a decision of the Chief Appeals Officer (the “CAO”) to determine the Appellant’s social welfare appeal on a summary basis.

Background:

The Appellant appealed a decision of a Deciding Officer which required her to repay €54,184.10 in Carer’s Allowance, on the basis that the Appellant was only entitled to a lower rate of Carer’s Allowance from 2014-2018 and had not been entitled to any Carer’s Allowance from 2018-2019. This decision was made due to the changed financial circumstances of the Appellant from the start date of payment of the Carer’s Allowance of which she had been in receipt. The Deciding Officer stated that its decision was based on sections 179, 181 and 302(b) of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”). The Deciding Officer informed the Appellant she had a right to request a review of this decision by a Deciding Officer or to appeal to the CAO. The Appellant subsequently appealed to the CAO.

Regulation 13 of the SI 108/1998, Social Welfare (Appeals) Regulations 1998 (the “1998 Regulations”) allows the CAO to determine an appeal summarily if they are of the opinion that the case is of such a nature that it can be properly determined without an oral hearing.

The CAO considered the Appellant’s appeal on a summary basis and upheld the decision of the Deciding Officer.

The Applicant issued judicial review proceedings, arguing that in making a decision on a summary basis, the CAO had acted without due regard to fair procedures, natural and constitutional justice and contrary to the provisions of the 2005 Act and the Social Welfare (Appeals) Regulations, 1998 (as amended) (the “1998 Regulations”).

Decision of the High Court

The High Court determined that the fundamental question was whether an oral hearing was necessary to fairly dispose of the appeal. The High Court ultimately rejected the submission that an oral hearing was necessary in the circumstances.

Furthermore, the High Court determined that the Applicant could not succeed in the judicial review in circumstances where there was an alternative remedy available in the form of seeking a revision under section 317 of the 2005 Act.

Substantive issues to be determined

The Court of Appeal noted that the two substantive matters to be determined were as follows:

Did the High Court err in relation to its finding that there existed an alternative appeal remedy, namely s. 317 of the 2005 Act?; and,

If necessary, did the High Court err in holding that an oral hearing was not required?

Key Conclusions:

The Court of Appeal determined that the remedy of revision of an appeal decision of the CAO under s. 317 of the 2005 Act was a “…remedy [that] was suited to [the Appellant’s] concerns; it could have addressed her entitlement to an oral hearing, and it could have provided her with such an oral hearing if deemed necessary.”.

Section 317(1)(a) of the 2005 Act provides that: “An appeals officer may at any time revise any decision of an appeals officer where (a) it appears to him or her that the decision was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given.”

The Court of Appeal concluded that the CAO was obliged to assess each case brought before it for revision on its own merits and therefore, to decide the Applicant’s application for a revision (if such was made) on the strength of such case, under s. 317 of the 2005 Act.

The Court of Appeal did not consider whether the High Court had erred in holding that an oral hearing was not required, as this was rendered moot by its finding that there was an alternative remedy available to the Applicant.

Relevant Legislation:

Social Welfare (Consolidation) Act 2005

SI 108/1998, Social Welfare (Appeals) Regulations, 1998

SI 505/2011, Social Welfare (Appeals) (Amendment) Regulations 2011.

Key Arguments:

The Applicant argued:

That there was a distinction between a revision under s. 317 of the 2005 Act and an appeal, relying upon the decision of the High Court in LD v Chief Appeals Officer [2014] IEHC 641;

That the revision procedure cannot cure the failure of the Chief Appeals Officer not to hold an oral hearing of the Appellant’s appeal;

That an absence of fair procedures at an initial stage may mean that an appeal cannot suffice as an alternative remedy because it does not restore an applicant to the same position that they would have been in had the matter been decided fairly in the first place. The Applicant sought to relying upon Koczan v Financial Services Ombudsman [2010] IEHC 407 and EMI Records (Ireland) Ltd v The Data Protection Commissioner [2014] 1 ILRM 225; and

That an application for revision would not put her in the same position she would have been in had the matter been decided correctly in the first instance, because she had lost her original right to a fair appeal of the decision of the Deciding Officer.

The Respondents argued:

That the Applicant ought not to have proceeded by way of judicial review where she had an alternative appeal mechanism open to her under s.317 of the 2005 Act;

That following the appeal decision, the Appellant could and should have sought a revision during which she could have and should have brought new evidence, relying on the decision of the High Court in LD v Chief Appeals Officer and the decision of the Supreme Court in Petecel v Minister for Social Protection [2020] IESC 25;

That a revision could amount, in an appropriate case, to a full rehearing per LD v Chief Appeals Officer; and,

That the Applicant had failed to exhaust the alternative remedy of seeking a revision under the scheme of appeals/revision set out in the 2005 Act.

Decision of the Court of Appeal:

The Court of Appeal upheld the decision of the High Court.

It found that the Applicant had the ability to request a “revision” of the decision of the CAO, enabling her to have an oral hearing; which constituted an alternative remedy to which she ought to have had recourse; and which alternative remedy she “failed to exhaust” such that she was disentitled to the relief she sought by way of judicial review.

The Court of Appeal also rejected the argument that there would be unfairness in the “revision” (i.e., bad faith), concluding there was no evidence that the Applicant would have been prejudiced in her revision application due to the CAO having previously decided her appeal against her.

The Court of Appeal ruled that it must consider “the underlying grounds upon which the substantive claim for relief is made” (i.e., the decision of the Appeals Officer to decide the Applicant’s claim summarily), which would enable it to decide if there was a fundamental denial of fair procedures or a lack of jurisdiction, such that the availability of an alternative remedy would be irrelevant. If that were the case, then the discretion to refuse jurisdiction (i.e., to refuse an application for judicial review) may not be exercised by the court hearing the application.

The Court of Appeal further pointed to s. 318 of 2005 Act which empowers the CAO to revise an appeal decision not only on new evidence which has been brought to its attention, but also on a point of law. In this regard, the Court of Appeal further confirmed that the power of revision includes the power to hold an oral hearing and the right to review a decision not to grant an oral hearing.

On the basis of the foregoing, the Court of Appeal determined that there was a suitable alternative remedy available to the Applicant which she had failed to exhaust and her judicial review application was denied.

Date of final Decision: 24 May 2023

Observations: This case highlights the importance of considering whether there are alternative remedies available within the social welfare appeals framework which can be exhausted before considering an application for judicial review to the High Court. There is no “one size fits all” approach to all exercises of discretion as to relief by way of judicial review, so each case should be assessed on its own merits. Whether an adequate alternative remedy is available will depend on the nature of the applicants complaint regarding the underlying decision. Furthermore, the case also highlights the broad and wide-ranging power of revision. For example, the revision process can, where appropriate, permit a decision not to provide for an oral hearing to be reversed and it can accommodate an oral hearing itself.

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Case Report G0146: M.D. v Minister for Social Protection [2024] IECA 28, Burns J, 6 February 2024

Title of Payment: Domiciliary Care Allowance

Date of Final Decision: 6 February 2024

Keywords: Domiciliary Care Allowance; statutory appeal to the High Court on a question of law; duty to give reasons; irrational/unreasonable; global care of the child.

Casebase no: G0146

Case Summary: M.D. v Minister for Social Protection [2024] IECA 28, Burns J, 6 February 2024

The case concerned an appeal against a decision of the High Court in relation to an appeal on a point of law under section 327 of the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”), regarding a decision to refuse the applicant’s application for Domiciliary Care Allowance (“DCA”) in respect of her teenage daughter.

The decision was based on the fact that the statutory conditions governing the grant of DCA had not been met, namely that the child required “care and attention substantially in excess of another child of the same age without that disability.”

The child was born in April 2006 and in 2019 received the following diagnosis’ in light of developmental concerns: Development Co-Ordination Difficulties/Dyspraxia (“DCD”) and Autism Spectrum Disorder (“ASD”).

In February 2020, the application first applied for DCA, and enclosed a medical report from the child’s GP; the occupational therapist report diagnosing DCD; and the ASD Multidisciplinary Assessment report confirming the diagnosis of ASD. A Medical Assessor’s Report was subsequent commissioned by the Department of Social Protection (the “Department”), in which the Medical Assessor opined that the child did not require substantially more care and attention than another child of her age. This application was refused on the basis that the qualifying conditions were not met.

The appellant appealed the decision in May 2020 pursuant to s. 311 of the 2005 Act, as with the additional evidence of a family impact statement setting out the child’s difficulties and a further letter from the child’s GP. On 24 July 2020, the appellant was notified that the refusal of DCA had been upheld by a different Deciding Officer who also determined that the qualifying conditions had not been met.

The matter was thereafter forwarded to the Appeals Officer, who again disallowed the appeal on the basis that he was not satisfied that the child required the “care and attention substantially in excess of another child of the same age without that disability.”

The applicant’s legal representatives subsequently wrote to the SWAO, and requested an oral hearing, which was granted by the SWAO. The Appeals Officer dismissed the appeal, and concluded that no significant new information was presented at the oral hearing and that the care and attention that the child required was not substantially in excess of that required by another child of the same age.

This was further escalated to the Chief Appeals Officer under s 318 of the 2005 Act. Further evidence of the child’s habits and behaviours were submitted. This appeal was unsuccessful on the basis that no specific error of law or fact had been identified, and that all the evidence submitted by the appellant had been evaluated against the statutory test for DCA. Although the child required additional support in some areas, the Chief Appeals Officer found that she was independent in many aspects of daily life such as washing, dressing, feeding and toileting. Therefore, it was not established that the child required “continual or continuous care and attention substantially in excess of the care and attention normally required by a child of the same age.”

The applicant sought a further review under section 317 of the 2005 Act on the basis that information put before the Chief Appeals Officer was not before the Appeals Officer in reaching its initial decision.

This appeal was disallowed. It is this decision that the applicant appealed to the High Court on a question of law pursuant to s. 327 of the 2005 Act.

Relevant Legislation

The Social Welfare Consolidation Act 2005

The decision of the High Court

The High Court initially addressed the question as to what the High Court’s jurisdiction was in a statutory appeal on a question of law.

It held that an appeal to the High Court on a question of law covered

errors of law as generally understood;
errors such as would give rise to judicial review including illegality; irrationality, defective or absence of reasoning, and procedural errors of some significance;
errors which may arise in the exercise of discretion which are plainly wrong; and
certain errors of fact

It further indicated that this jurisdiction was wider than that of judicial review.

Having established that it had jurisdiction, the High Court determined that it had to consider the following three questions of law:

Did the Appeals Officer fail to provide reasons for his decision which were adequate as a matter of law?
Is the decision of the Appeals unreasonable / irrational as a matter of law?
Did the Appeals Officer apply the incorrect statutory test in making his decision?

The High Court ultimately determined that adequate reasons were given for the decision at issue; that the decision was not unreasonable or irrational as a matter of law; and that the correct statutory test was applied by the Appeals Officer in making his decision.

The applicant appealed each of these findings to the Court of Appeal ,and further asserted that the High Court had erred in finding that evidence of consideration were discernible from the decision making process as a whole. The applicant further asserted that the High Court misdirected itself in relation to the operation of the appeals procedure in that it had regard to the Medical Assessor’s Report which was not before the Appeals Office.

The decision of the Court of Appeal

The Court of Appeal upheld the reasoning of the High Court in relation to jurisdiction. It further dismissed the appeal and upheld the decision of the High Court.

Failure to give reasons

The Court of Appeal agreed with the High Court’s determination that “…the rationale for the impugned decision was pattern from the terms of the decision”. The Court of Appeal found that the appropriate standard for the duty to give reasons was set out in Connelly v An Bord Pleanála [2021] 2 IR 752, which provided as follows in relation to adequacy of reasons:

“First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision.”

The Court of Appeal found that this standard had been met by the Appeals Officer. It held that “…the exercise conducted by the Appeals Officer could in no way be described as “box ticking“” and that “….it was not necessary for the Appeals Officer to give reasons as to why he placed more emphasis on the appellant’s earlier submissions than later submissions, nor was it necessary for him to state what weight he attributed to the various submissions. He was entitled to look at the evidence in the round and reach a decision on the basis thereof”.

Unreasonable/irrational

The Court of Appeal found that it in this particular case, the Appeals Officer had had regard to all of the information put before him, and it was up to him to consider all of the submissions made. It held that the Appeal Officer’s decision was not “…not based on determinations of fact which are unreasonable nor has an incorrect interpretation been placed on documentation resulting in unreasonable inferences or conclusions being drawn.” As such, the applicant had failed to establish that the decision was irrational or unreasonable.

Statutory test

The applicant sough to argue that the High Court had erred in finding that the correct statutory test had been applied.

The statutory test for DCA as set out in Section 186C of the 2005 Act, provides:

The Court of Appeal noted that further guidelines provide that “Eligible children from birth to the age of 16 who are living at home and who have a severe disability requiring continual or continuous care and attention which is substantially in excess of that normally required by a child of the same age may qualify for [the allowance]”

The Court of Appeal found that there are two components for this:

the child requires continual or continuous care; and
the care required is substantially in excess of that normally required by a child of the same age

It found that the test is met if “…the global care of the child is continual or continuous and the level of care required is substantially in excess of a child of the same age.” IT held that this standard had been correctly applied by the High Court.

Medical Assessor

Finally, the Court of Appeal found that the criticism of the High Court with respect to her understanding of the Medical Assessor’s Report “…is not warranted” and dismissed this ground of appeal.

Date of final Decision: 6 February 2024

Observations:

This decision highlights that the jurisdiction of the High Court in relation to an appeal on a point of law is broader than that of judicial review. It further clarifies the duty to give reasons, and emphasises that the global care of the child must be continual and in excess of that of a child of the same age, in order to qualify for DCA.

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Case Report G0142: Razneas v Chief Appeals Officer [2022] (10 JIC 1402)

Title of Payment: Jobseekers Allowance

Date of Final Decision: 14 October 2022

Keywords: Jobseeker’s Allowance, EU citizen, worker status, residence, voluntary work, judicial review, European Convention on Human Rights Act.

Organisation who represented the Claimant: Free Legal Advice Centre (FLAC)

Casebase no: G0142

Case summary:

This case concerned an appeal against a decision of the High Court in relation to a judicial review application, concerning a decision to refuse Jobseeker’s Allowance (“JSA”) to an EU citizen from another EU Member State living in Ireland.

The decision was made on the basis that the applicant did not have the ‘right of residence’ required to access the benefit under the s.246 Social Welfare Consolidation Act 2005.

The applicant, who is an EU national from Romania, had lived in Ireland since 2016. Due to personal circumstances, the applicant was required to enter the workforce. The applicant spent a trial period of 4 weeks carrying out voluntary work with a charity, the Mendicity Institution. The purpose of the trial was to demonstrate that the applicant had the capacity and commitment to move into a community employment scheme (the “CE Scheme”). The applicant did not receive any payment during the trial period but was provided with lunch each day. The applicant was unsuccessful in the trial period and the Mendicity Institution did not transfer her to the CE Scheme. The applicant then sought work unsuccessfully elsewhere and subsequently applied for JSA in July 2018. At around the same time, the applicant also made an application for residency in Ireland, which was refused.

The application for JSA was refused and her appeal to an appeals officer was unsuccessful. Following this, she made an application to the High Court for judicial review of the decision.

The decision of the High Court

The High Court decided that:

JSA amounted to a form of ‘social assistance’ rather than a ‘financial benefit’ intended to assist a person entering the labour market. Accordingly, a condition that a person seeking JSA had a ‘right to reside’ in Ireland was a legitimate and proportionate limitation within the meaning of EU law.
the appeals officer was correct to reach the conclusion that the applicant was not a ‘worker’, and therefore could not qualify for JSA under the Social Welfare Consolidation Act 2005.
the relevant provisions of the Social Welfare Consolidation Act 2005 were compatible with the Constitution and the European Convention on Human Rights (the “ECHR”).

The decision of the Court of Appeal

The applicant appealed the above decision of the High Court to the Court of Appeal.

The legal framework

The Court of Appeal looked at the legal framework, in particular the Residence Directive, the Coordination Regulation and the Social Welfare Consolidation Act 2005.

The Residence Directive provides EU citizens with the right of entry and residence in a Member State of the EU for up to three months under Article 6. It also provides, under Article 7, that EU citizens are allowed to stay for longer than 3 months provided that they are (a) workers or self-employed in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State; or (c)are enrolled at an establishment for the purpose of study and have comprehensive sickness insurance cover and have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State; or (d) are family members accompany an EU citizen who has satisfied conditions in (a), (b) or (c). The Residence Directive requires that EU citizens to be treated equally to citizens from the host Member State (under Article 24(1)) with the exception of matters relating to ‘social assistance’. Article 24(2) states that host Member States are not required to give social assistance during the three-month period or the longer period, prior to the acquisition of a permanent right to residence. The Court, therefore, noted that a key concept of the Residence Directive is that of ‘social assistance’ and that if JSA qualified as ‘social assistance’, then the Member State is not under any obligation to provide access to measure for the first three months of residence or for the longer period. The Residence Directive is given effect to in Ireland under the Statutory Instrument 548/2015, the European Communities (Free Movement of Persons) Regulations 2015.

The Coordination Regulation deals with the coordination of social security systems with regards to the free movement of EU citizens, with the aim of improving the standard of living and conditions of employment. However, the Court noted that it does not go so far as to create a common scheme of social security. The Coordination Regulation provides that cash benefits payable under the legislation of one or more Member States shall not be reduced, suspended, withdrawn or confiscated on the basis that the person who is to benefit from it, or the members of his/her family, live in a Member State other than that of the institution responsible for the payment. The Coordination Regulation provides for the exclusion of certain types of ‘special non-contributory cash benefits’ from its scope and the annex to the Coordination Regulation (annex X) provides a list of such excluded payments with respect to Ireland including JSA, non-contributory State pension, widow and widower’s non-contributory pension, disability allowance, mobility allowance, and blind pension. The applicant, argued however, that the Court should look at the substance of the payment and that its inclusion in annex X to the Regulation did not determine the issue.

The Court also noted that the Social Welfare Consolidated Act 2005 also classifies JSA as ‘social assistance’ in Part 3 of the Act. The Court noted that JSA is a means-tested payment to unemployed adults who prove that they are unemployed and capable of, available and are genuinely seeking employment. As part of this the person must be habitually resident in Ireland, and s. 246(5) provides that a person cannot be considered habitually resident where they do not have the right to reside in Ireland.

Key conclusions

The Court of Appeal decided as follows:

it agreed that JSA qualified as ‘social assistance’ and not a payment to facilitate access to the labour market;
the applicant did not qualify as a ‘worker’ within the meaning of the Residence Directive, due to the voluntary nature of the work carried out, and therefore did not have a right to reside in Ireland;
it was not a breach of the guarantee of equality in Article 40.1 of Constitution to deny the applicant access to JSA, as the applicant was not comparable with an Irish citizen and a person with the right to reside in Ireland; and
the decision refusing JSA did not amount to a violation of the applicant’s rights under Article 8 and Article 14 of the ECHR.

Relevant Legislation:

Social Welfare Consolidation Act 2005;
European Convention on Human Rights Act 2003;
Directive 2004/38 EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; and
Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.

Key arguments:

The applicant argued that:

the decision of the High Court should be quashed in respect of the refusal of the applicant’s JSA application on the basis that JSA should not be characterised as a form of ‘social assistance’ and should, instead, be characterised as a payment intended to facilitate entry into the labour market as a matter of EU law;
the applicant should be considered a ‘worker’ as a matter of EU law due to the nature of the work carried out with the Mendicity Institution and accordingly has a ‘right to residence’ according to the Residence Directive;
the relevant provisions of the Social Welfare Consolidation Act 2005 regarding JSA which make it a pre-condition that a person must have a right to reside in the State to obtain access to JSA (namely section 246(5), (6) and (7)) are unconstitutional and contrary to Article 40.1 of the Constitution regarding the guarantee of equality and contrary to Articles 14 and 8 of the European Convention on Human Rights regarding the right to be treated equally and the right to family life respectively. In particular, the applicant submitted that the provisions of the Social Welfare Consolidation Act 2005 make no allowance for people in similar vulnerable circumstances as them and therefore these provisions are incompatible with the ECHR, given effect to by the European Convention on Human Rights Act 2003. As such, the applicant argued that she should be granted a declaration that s.246(5) of the Social Welfare Consolidate Act 2005 is incompatible with the European Convention on Human Rights Act 2003.

The respondent argued that:

JSA did constitute a form of ‘social assistance’ according to Irish law and EU law, rather than a payment to facilitate entry to the workforce. The respondent argued that the intention of JSA is to provide a minimum subsistence payment. In addition, the respondent argued that the applicant does not have a right to reside merely because she is a long-term jobseeker, rather they have a right not to be expelled under Article 14(4)(b) of the Residence Directive. This argument was made on the basis of the decision of the Court of Appeal in Munteanu v. Minister for Social Protection Ireland and the Attorney General, where the Court held JSA is a form of ‘social assistance’ and that therefore no reference was required to the Court of Justice of the EU with regards to the status of ‘social assistance’. This case also held that while JSA on its face was discriminatory in that Irish residents who lived in Ireland automatically satisfied the requirement of having the right to reside, the measure was justified on the basis of preventing persons from becoming an unreasonable burden on the State.
the applicant could not be classified as a ‘worker’ with regards to the work carried out in the Mendicity Institution, due to the voluntary nature of the work. In addition, they noted that the applicant did not meet the criteria of an employee, emphasising the absence of a contract. Furthermore, they noted that the Mendicity Institution was not an approved CE Scheme and does not operate or employ persons on CE Schemes.
there was no basis for the argument that the Social Welfare Consolidation Act 2005 was unconstitutional and contrary to the ECHR as needing to have the right to reside to qualify for JSA was a valid basis for a difference in treatment of two categories of persons.
there was no violation of the right to equal treatment in Article 14 of the ECHR as the precondition of having the right to reside was a proportionate and lawful condition.

Decision of the Court of Appeal:

Characterisation of JSA

The Court dismissed the appeal, agreeing with the High Court, that JSA is characterised as a form of ‘social assistance’ and not a payment designed to facilitate entry into the labour market. The Court held that as JSA is considered a form of ‘social assistance’ that Ireland is permitted to limit its application in accordance with annex X of the Coordination Regulation. The Court based this decision, not on the domestic classification of the payment, but on a detailed analysis of case-law which looked at the ‘nature, purpose and conditions’ of the JSA payment and which noted that the payment is intended to be social assistance for persons unable to provide for their own basic living costs during working age.

Characterisation of ‘worker’

With regards to the to the argument that the applicant was a ‘worker’ under EU law and therefore had a right to reside in Ireland, the Court held that, on the basis of EU case-law, the definition of ‘worker’ is not broad enough so as to include the voluntary arrangement the applicant had with the Mendicity Institution in April 2018. While the Court noted that the level of income from the activity did not determine the status as worker, where the activity is solely a means to rehabilitate or re-integrate the person to allow them to take up ordinary employment, he or she cannot be considered a ‘worker’. In addition, the Court noted that a person who enters another Member State looking for work and who has not yet worked in the State cannot be considered a ‘worker’ due to their ‘job-seeking status’. Finally, the Court noted that participation in a community based on religion, or another philosophy could only be regarded as an economic activity, in some circumstances, where a person provides services to the community in return for accommodation, food and other basics of life which may then confer ‘worker status’ on the individual. However, the Court held that the applicant’s activities with the Mendicity Institution lacked the essential features of an employment relationship due to its voluntary nature and the fact it lacked remuneration, which is considered a key feature of EU case law. The Court distinguished the provision of daily lunch to EU case law where ‘full bed and board’ was provided to workers in return for their services. In addition, the Court also noted that the Mendicity Institution workshop was not itself part of a CE Scheme and in any event, even if the applicant was part of a CE Scheme that this alone would not be enough to classify the applicant as a worker.

Reference to the Court of Justice of the EU

The Court held that there was no need to make a reference to the Court of Justice of the EU, noting that no point of EU law required clarification, as the law was settled with regards to the status of JSA and the definition of ‘worker’. The Court accepted that, while the applicant was genuinely seeking work, this makes no difference with regards to the relevant classifications.

Compatibility with the Constitution of Ireland and the European Convention on Human Rights

With regards to the argument that there was a breach of Constitution, the Court held, firstly, that there is no constitutional right for an EU national from another Member State to social assistance in Ireland and secondly that that there was no breach to the guarantee of equality by denying the applicant JSA. This was on the basis that Irish citizens and persons with a right to resident in the state, on the one hand, and EU nationals who did not have a right to residence, on the other, were not considered comparable.

Similarly, the argument that the refusal of JSA amounted to a breach of the right to equality for the purposes of the Article 14 of the ECHR, was rejected by the Court on the basis that no argument was put forward to suggest that the differentiation amounted to discrimination prohibited by the ECHR. Similarly, no argument sufficiently demonstrated that there was a breach of Article 8 ECHR with regards to the right to family life. As such the appeal was dismissed.

Date of final Decision: 14 October 2022

Observations:

This decision has the implication that in order to qualify for JSA an applicant must have a right to residency in the State and furthermore highlights that voluntary work is not sufficient to give a person ‘worker status’ under EU law.

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