Deciding Body: High Court

Case Report G0158 – AN v Minister for Social Protection [2025] IEHC 479

Date of Final Decision: 22 August 2025

Keywords: Carer’s allowance; free movement of EU citizens; worker; engaged in economic activity;  right to reside

Organisation who represented the Claimant: N/A

Casebase No. Case G0158

Background

The applicant was a Romanian national who came to Ireland in September 2021 to reside with her daughter and son-in-law as a carer for her two grandsons who have serious special needs. The applicant applied for carer’s allowance and was refused on the basis that she was not habitually resident in the State when she made the application in January 2022. The applicant alleged that as a national of an EU Member State she has the right to travel to another Member State and reside there if she is a worker. She alleged that she was a worker, and as such was entitled to the carer’s allowance. The decision against the applicant was not overturned on appeal, following which she left Ireland and returned to Romania in May 2024, and obtained leave to bring judicial review proceedings in October 2024.

The applicant brought forward two issues before the High Court in the judicial review proceedings:

  1. Whether she had a right to reside in the State, which depended on whether she was within the definition of ‘worker’ by providing 35 hours of care per week for her grandsons; and
  2. Whether Ireland had properly transposed Directive 2004/38/EC into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015)

Relevant Legislation

  • Citizens’ Rights Directive 2004/38/EC (the “Directive”)
  • European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015) (the “2015 Regulations”)
  • Social Welfare Consolidation Act 2005
  • Regulation (EC) 883/2004 on the coordination of social security systems.
  • Regulation (EU) 492/2011 on the freedom of movement for workers within the Union.

By way of background, carer’s allowance is the main scheme by which the Minister for Social Protection provides income support to carers in the community. It is a means tested social welfare payment which is awarded to carers who are caring for certain people who require full-time care and attention. It is not related to the individual care requirements of the person receiving the care.

It provides an income replacement support to those whose ability to earn a sufficient income is substantially reduced because of their care obligations. The carer must provide at least 35 hours care in a seven-day period; the recipient of care must reach a threshold of disability; the carer must pass a means test; and the carer must be habitually resident in Ireland.

Key Arguments:

The applicant argued that:

  1. The definition of a worker for the purposes of the Directive is wider that what may be considered the usual employment relationship in Irish law.
  2. Regulation 6(3)(a)(i) of the Irish Regulations had impermissibly narrowed the scope of those who would be regarded as workers by making reference to a person who is “in employment or in self-employment”.
  3. When she came to Ireland to care for her grandsons and was in return given board, lodging and expenses, this was sufficient to constitute remuneration for her work in looking after the children.
  4. Even if she was not a worker, she came within the provisions of regulation 6(3)(a)(ii) of the 2015 Regulations for economically inactive people.

The respondent argued:

  1. While there is a difference in the wording between the Directive and 2015 Regulations, the latter did no more than reflect how the term ‘worker’ had been interpreted by Court of Justice of the European Union (‘CJEU’) jurisprudence.
  2. The rules on free movement of workers cover only those in the pursuit of effective and genuine activities.
  3. The applicant’s assistance in caring for her grandchildren in return for board, lodging and expenses was not sufficient to constitute her as being engaged in an economic or commercial activity which is necessary to make the person.

Decision of the High Court:

The High Court held that the appeals officer was correct in holding that the applicant did not have a right to reside in Ireland as she was not a ‘worker’ under EU law. She was not engaged in an economic activity whereby she would provide services in return for remuneration. Her caring services for her grandchildren were entirely voluntary.

Regarding the issue of whether the Directive was properly transposed into Irish law, the High Court held that the 2015 Regulations captured the meaning of ‘worker’ as defined under EU law.

Key Conclusions:

Based on its analysis of EU and Irish law, the High Court noted that the requirements to be a worker are that the applicant would need to be engaged in work as part of an economic activity. There was no suggestion that the applicant was engaged in any economic activity on her own behalf or as part of any economic activity carried out by her daughter. Additionally, there was no evidence that she was in an employment relationship with her daughter and son-in-law as she provided care for her grandchildren on an entirely voluntary basis. The board, lodging and expenses she was provided with were within the context of her offering care voluntarily.

Counsel for the applicant suggested that the case should be referred to the CJEU to consider whether her work would constitute her a ‘worker’ for EU law. The High Court held that it was not necessary as the CJEU has given clear guidance to determining whether a person is a worker, and the request would amount to asking the CJEU to apply its tests to the facts of the case.

The test for economically inactive people requires them to establish that they have sufficient means to not become an unreasonable burden on the social assistance system and that they have comprehensive sickness insurance. The High Court held that carer’s allowance was social assistance as it is a payment designed to compensate those who are unable to access the labour market as a result of providing care. Additionally, her resources had been assessed at zero by the inspector, therefore she did not have sufficient resources to not become a burden on the social assistance system

Seeing as the applicant was not a worker within the context of EU law, the High Court also held that she did not have a right of residence as a result of not being a worker. Therefore, as she did not have a right of residence, she could not satisfy the requirement to be habitually resident in Ireland which is part of the eligibility criteria for receiving carer’s allowance.

The Court also held that there was no failure to properly transpose the provisions of the Directive into Irish law. While the wording in the 2015 Regulations differs from the wording in article 7 of the Directive, it was not relevant because the CJEU has held that the concept of ‘worker’ is confined to those engaged in economic activity.

Date of Final Decision: 22 August 2025

Observations:

The High Court noted that there was some unfairness in the practical reality of the decision. If the applicant had been an Irish citizen travelling from another part of the country to care for her grandchildren, she would have been eligible for the carer’s allowance. Yet as an EU citizen travelling from Romania to Ireland to do the same thing, she could be denied the payment because she unluckily fell foul of EU and Irish law on the right of residence.

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable.

For more information, contact us at:

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Case Report G0154 – Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Title of Payment: Domiciliary Carers Allowance

Date of Final Decision: 14 November 2023

Keywords: Domiciliary Care Allowance, Social Welfare Appeals, Judicial Review, Severe Disability, Continual Care, Social Welfare Consolidation Act 2005; section 317 review; eligibility as at date of application

Organisation who represented the Claimant: N/A

Casebase No. Case G0154

Case Summary:

Background

This case relates to a decision of the Supreme Court dismissing an appeal of a decision of the High Court in relation to an appeal on a point of law under the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”). The crux of the case related to the refusal of the applicant’s application for Domiciliary Care Allowance (“DCA”) in respect of her young son.

In dismissing the appeal, the Supreme Court affirmed that the legislative framework requires eligibility to be assessed and based on the conditions at the time of the application. The Supreme Court ruled that the appellant had to establish eligibility for DCA as of the date of the original application in 2018, and that new evidence from 2020 could not be used to revise the original decision.

Initial application:

The appellant initially applied for DCA in June 2018 with respect to her son, who was five years and two months old at the time.  The application was assessed by a deciding officer who concluded that her son’s care needs did not meet the qualifying conditions for DCA, which require that the child has a severe disability necessitating continual or continuous care substantially in excess of that required by children of the same age without disabilities.  This decision was communicated to the appellant on 30 August 2018.  Following this, the appellant appealed the decision. A subsequent review by another deciding officer in December 2018, in accordance with s.301 of the 2005 Act upheld the original decision.

Appeal to Social Welfare Appeals Office (“SWAO”)

The appellant’s appeal of the initial decision was then heard by an appeals officer in February 2019.  The appeals officer also disallowed the appeal on similar grounds, concluding that her son’s care needs were not substantially in excess of those required by other children of the same age.  The appellant sought a review of this decision under section 317 of the 2005 Act, which allows for a decision to be revised by an appeals officer if new evidence or facts come to light.  However, the appeals officer determined that there were no new facts or evidence to warrant a revision and upheld the original decision in June 2019.  The appellant then requested a review by the Chief Appeals Officer, who also found no error in fact or law in the appeals officer’s decision and declined to revise it in September 2019.

Additional evidence

In late 2020, an assessment by the Health Service Executive (“HSE”) concluded that the appellant’s son had a substantial restriction in capacity due to an enduring impairment, meeting the criteria for disability under the Disability Act 2005.  Based on this assessment, in April 2021 the appellant sought another review of the 2019 decision of the appeals officer pursuant to section 317 of the 2005 Act, arguing that the new assessment demonstrated that the original decision was erroneous. However, the appeals officer refused to revise the decision, stating that the new evidence pertained to her son’s condition in 2020 and did not provide new information about his condition at the time of the original application in 2018.

Key Legislation:

  1. Social Welfare Consolidation Act 2005, particularly sections 186C, 301, 317, and 318
  2. Disability Act 2005
  3. Legal Services Regulation Act 2015, section 169

Decision of the High Court

The appellant brought judicial review proceedings in the High Court.  The High Court dismissed the challenge, on the basis that the issue to be decided was whether at the time of her son’s original application for DCA he had met the criteria.

The High Court concluded that none of the additional information provided addressed whether or not the applicant’s son met the criteria for DCA as at the time of his original application.

The High Court held that the test in section 301 of the 2005 Act means that if new material only goes to a change of circumstance since the original decision, then it cannot be considered as a basis for concluding that the original decision was erroneous in the light of new evidence or new facts which have been brought to the notice of the deciding officer since the date on which the decision was given.

Appeal to the Supreme Court

The appellant was granted leave to appeal the matter to the Supreme Court.

The key arguments on behalf of the appellant were as follows:

  1. The 2005 Act should be interpreted broadly to allow for eligibility determination based on new evidence. New did not mean having only come into existence after the original appeal but instead means that the evidence or facts in question simply must not have been before the original decision maker at the time the decision was made.
  2. The appeals officer should have considered new evidence from 2020 demonstrating her son’s disability. In refusing to revise the decision under s. 317(1) of the 2005 Act, the appeals officer must be satisfied that the outcome would remain unchanged if the new material had been before them previously. It does not follow that an appeals officer’s review jurisdiction is confined to a reversal of the original decision; rather, it may consist simply of an adjustment of some kind.
  3. The High Court erred in focusing on the date of the original application rather than the evidence available at the time of the appeal.

The key arguments on behalf of the respondent were as follows:

  1. Eligibility for DCA must be assessed based on the conditions at the time of the original application. The legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances as it is clear from the ordinary, basic, and natural meaning of the words in the relevant legislative provision that the assessment to be made is whether the evidence establishes eligibility for the benefit as of the date of the application and not as of some future date as the relevant words are in the present tense.
  2. The intention of the Oireachtas to allow only evidence as to the circumstances present at the date of the original application is clear by the fact that an assessment of the eligibility is made by reference to whether a child has a severe disability requiring care and attention substantially in excess of “the care and attention normally required by a child of the same age” and the care and attention needs of a child aged five years and two months differ to those of a child who is seven years and seven/eight months which is a different question to be assessed in the first instance.
  3. The statutory wording must be viewed within the full context including the other sections of the 2005 Act. The structure of the 2005 Act is such that it is the question that is originally determined by the deciding officer that frames the subsequent appeal or revision jurisdiction. The question originally determined by the deciding officer is whether the eligibility criteria were met when the application was made, and this must also be the question for an appeals officer exercising their revision jurisdiction.

Decision of the Supreme Court:

The Supreme Court distilled the case to the following net issue: “…when seeking a revised decision in 2021, did the appellant in this case have to establish eligibility for DCA as of the time of the original application for DCA in 2018, or did it suffice to show entitlement as to the date of the revision application in 2021”.

The Supreme Court, in dismissing the appeal, found that an appellant has to establish eligibility as at the date of the making of the original application.  In this regard, it further held that the legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances.  It held that while retrospective payments in respect of periods prior to the date of the claim are premised on the assumption that claimants have the right to benefits as at the time of the claim.

The Supreme Court further held that this requirement remains even where there is an appeal under section 311 of the 2005 Act, or an application for revision of a decision of an appeals officer under section 317 of the 2005 Act.  In this regard, the Supreme Court found the legislative history to be instructive, and placed significance on the fact that section 317 had been amended in 2013 to remove the ability of an appeals officer to revise a decision where there had been a change of circumstances. This amendment meant that any change of circumstances since the date of application must trigger a fresh claim.

Date of final Decision: 14 November 2023

Observations:

The ruling underscores the importance of assessing eligibility for social welfare benefits based on the conditions at the time of the original application, rather than allowing for retrospective eligibility based on new evidence of changed circumstances.

The Court’s findings clarify that if an applicant’s situation changes after the initial application, they cannot use this new information to argue for a revision of the original decision. Instead, the applicant needs to submit a new application reflecting the current circumstances. Applicants should be aware of this limitation and plan accordingly. For example, in the case of DCA, applicants should be mindful that any significant changes in their child’s condition or care needs will require a new application, rather than a revision of the previous one.  For completeness, it should be noted that the Court did also refer to the fact that if a claim is successful, DCA can be backdated if appropriate having regard to section 241(4A) of the 2005 Act.

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable.

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Case Report G0153 – T v Minister for Social Protection [2023] IEHC 763 

Title of Payment: Carer’s Allowance 

Date of Final Decision: 21 December 2023 

Keywords: Carer’s Allowance; medical evidence; full time care and attention for twelve months; medical evidence; eligibility as at time of application; duty to give reasons for the decision; alternative remedies 

Organisation who represented the Claimant: N/A. Applicant represented by senior counsel. 

Casebase no: G0153 

Case Summary:  

The case related to an application for judicial review to the High Court of a decision (the “Decision”) ofthe Department of Social Protection and the Social Welfare Appeals Office (the “SWAO”) to refuse to award carer’s allowance to the applicant (the “Applicant”).  

The Applicant applied for carer’s allowance in 2018 in relation to the care he provides to his partner. The Applicant’s partner had a number of health conditions including back pain, pernicious anaemia, depression, anxiety, uterine prolapse and severe stress incontinence.  

This application was refused by way of letter dated 23 January 2013, with the Deciding Officer noting that they had assessed means of “€0.00 per week from 19/01/2019”, and that the requirements of Section 179 (4) of the Social Welfare Act 2005 (the “2005 Act”) (which defines a carer and provides the circumstances under which carer’s allowance may be awarded) were not met. The decision letter informed the client that he may apply for the decision to be reviewed, and that it may be helpful toprovide “any further evidence relevant to the reason for refusal of your claim” 

The Applicant submitted an unsuccessful review and thereafter submitted an appeal to the SWAO. The SWAO issued its decision on 27 September 2019 and found that the Applicant had not met the eligibility criteria, in so far as the medical evidence submitted by the Applicant did not establish the necessity for full time care and attention for twelve months.  

The Applicant submitted a number of  requests for review under section 317 of the 2005 Act, all of which were unsuccessful, with the latest one dates 4 February 2022. The Applicant sought to challenge this decision by way of judicial review. 

Key conclusions 

The High Court found that the Decision contained an error of law and that inadequate reasons were given.  In particular, the Court found that the current needs of the relevant person had formed the basis for the Decision, as opposed to the needs of the relevant person as at the time of the decision. Furthermore, correspondence from the SWAO was found to contradict the Decision itself, in contravention of the principle laid out in City of Waterford VEC (see below). 

The High Court re-emphasised the duty to give reasons, and held that in the circumstances, it was not satisfied that the reader could “…know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider” (see Kelly J. (as he then was) in Mulholland v An Bord Pleanála (No. 2) [2006] 1 I.R. 453) 

Relevant Legislation: 

  • Social Welfare (Consolidation) Act 2005 
  • S.I. No. 108/1998, Social Welfare (Appeals) Regulations 1998 

Key Arguments:  

The Applicant argued that the Decision should be quashed as it is erroneous for a number of reasons, including: 

  • The Decision flies in the face of fundamental reason and lacks fundamental reason and common sense, and has resulted in a manifest error of law and fact, and should be quashed for lack of proportionality; 
  • The decision making process was flawed as a matter of law in that the Respondent took an erroneous view of the applicable test; 
  • The Respondent failed to take into account and/or give adequate weight to the medical evidence and facts outlined in the Applicant’s application; 
  • The Respondent failed to explain why the evidence submitted supporting his application was not accepted, in particular, when a report from a medical consultant in pain management, dated 21 September 2021, asserted that the applicant met the statutory requirements for carer’s allowance; and 
  • The Decision fails to disclose any adequate reasons so that it is not possible to fully determine if the said decision is vitiated by an error. 

The Respondent argued: 

  • The actions by the Appeals Officer for refusing the appeals to the Decision were correct, and the correct test had been applied;  
  • The foregoing grounds are ‘thin’ on detail (and a similar suggestion was made in relation to the grounding affidavit sworn by the Applicant); and 
  • The Applicant failed to exhaust alternative remedies via Section 318 or Section 327 of the 2005 Act. 

Decision of the High Court  

The High Court granted an order quashing the Decision. 

Reviewing the appeals to the Decision 

The High Court found that the Decision was based on an error of law and that the inadequate reasons were given.  

In particular, the Court found as follows:  

  • A decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made. 
  • In the correspondence refusing appeals to the Decision, the Appeals Officer did not address the relevant person’s care needs as of 2018, but instead referred to their current needs as of the dates of the various letters in 2019-2022; 
  • In relation to the duty to give reasons, it relied on an earlier judgment of City of Waterford VEC v. Department of Education and Science [2011] IEHC 278, which found that “When giving reasons for a decision, the reasons are to be stated there and then, and not added later upon challenge. Where reasons stated within a written decision are shown to be manifestly flawed, these cannot be supplemented by better reasons, or correct reasons, at any stage after the decision is made.”. The Court found that in this case, the statements made by the SWAO after the Decision went beyond confirmation of the reasons and were closer to an alteration of the Decision.  
  • The Court further relied on a principle established by Phelan J in MD v Minister for Social Protection [2023] IEHC 88, that “There is not an obligation on the Department to explain its decisions in detail but rather to inform applicants of the grounds for the decision so that the appeal is not impaired”. The High Court found that this principle had been breached in the decision-making process.  
  • On the basis of the above, the High Court found that the Applicant had made out its claim that inadequate reasons were given for the Decision. 

Alternative Remedies 

The High Court found that judicial review had been appropriately sought by the Applicant and relief should not be denied on the basis of any failure to exhaust alternative remedies. 

In this regard, the High Court noted that:  

  • When the refusal of the appeal to the Decision was communicated to the Applicant by letter dated 15 February 2022, the Applicant was not informed that there was any further right of appeal, be that pursuant to Section 318, or otherwise.  
  • The exercise of the Chief Appeals Officer’s Section 318 power does not depend on a dissatisfied person seeking to have that power invoked.  
  • In relation to Section 327, had the Applicant invoked Section 327 as opposed to seeking judicial review, the ‘net’ position for all parties would appear to be the same, namely: (i) both routes involve the seeking of a public law remedy; (ii) both routes are to the High Court; and (iii) the evidence discloses no prejudice whatsoever by reason of judicial review being pursued.  

Date of final Decision: 21 December 2023 

Observations 

This decision reinforces a number of fundamental points, including:  

  • The decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made;  
  • The decision maker shouldn’t supplement or replace reasons in a decision, with better and/or correct reasons after the decision is made; and 
  • There is no absolute obligation to exhaust all potential avenues in all circumstances, including an appeal under Section 318 and/or Section 327, before seeking relief by way of judicial review.  Each case should be assessed on its own merits.  

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable. 

For more information contact us at: 

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Northside Civic Centre, Bunratty Road, Coolock, Dublin 17  

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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:  

  1. 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, 
  1. 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:  

  1. 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; 
  1. That the revision procedure cannot cure the failure of the Chief Appeals Officer not to hold an oral hearing of the Appellant’s appeal; 
  1. 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 
  1. 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: 

  1. 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;  
  1. 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;  
  1. That a revision could amount, in an appropriate case, to a full rehearing per LD v Chief Appeals Officer; and, 
  1. 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. 

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable. 

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Case Report G0150 – Drutu v The Minister for Social Protection, Ireland and The Attorney General [2024] IEHC 386 

Title of Payment:  Child Benefit 

Date of Final Decision: 27 June 2024 

Keywords: child benefit; right to be paid child benefit directly; EU free movement rights; qualified person; application for judicial review; arrears of child benefit  

Organisation who represented the Claimant: N/A 

Casebase No. G0150  

Case Summary:  

This case relates to the Applicant’s claim for judicial review, in which she sought to challenge the Department of Social Protection’s (the “DSP’s”) refusal of her application for arrears of unpaid child benefit. The Applicant also sought a declaration that section 220(1) of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”) should be disapplied as it is contrary to EU law in not permitting the family member of a migrant worker exercising their free movement rights to apply for child benefit.   

The Applicant , a 30-year-old woman  from Romania, resided in Ireland since childhood with her parents and sibling. Her parents had unsuccessfully applied for child benefit on a number of occasions. 

In or around June 2012, the Applicant’s father made an application for arrears of child benefit. This application was refused on the basis that it should have been made by the Applicant’s mother. Thereafter, the Applicant’s solicitor applied on behalf of the Applicant. In a decision dated 1 February 2022, this application was refused on the basis that the Applicant was not a qualified person to apply. The Applicant subsequently brought judicial review proceedings, challenging this decision.  

The Law 

Section 220 (1) of the 2005 Act provides that a person qualified for child benefit is “a person with whom a qualified child normally resides”.  This was further confirmed in the Supreme Court decision of Michael (a minor) & ors v. Minister for Social Protection [2021], in which the Court stated that “[t]he child is not entitled to receive the payment of child benefit”. 

The Applicant submitted that this provision should be disapplied or the matter referred to the Court of Justice of the European Union (“CJEU”), as it was contrary to EU law in so far as it restricted her, as a child of migrant workers who have exercised their rights of free movement within the EU, from claiming child benefit in her own right.  

The High Court determined that the ultimate question was whether the Applicant has a right in EU law to be paid child benefit directly.  

Key Conclusions:  

The High Court decided that no such right in EU law existed. It further decided that the granting of family benefits is primary a matter of national law. It found that the Applicant was refused on the basis that she did not meet the criteria as a qualifying person set out in Irish law, and that the restrictions in Irish law as to who was a qualified person for the purposes of child benefit were not in contravention of EU law.  

Relevant Legislation:  

  • Social Welfare Consolidation Act 2005   
  • Regulation (EEC) 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (up to 31 April 2010) 
  • Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (from 1 May 2010) 

Key Arguments: 

The Applicant argued: 

  1. Article 68a of the Regulations: Regulation 1408/71 and Regulation 883/2004 (the “Regulations”) cover child benefit as a family benefit that is paid by a Member State. The Regulations provide that migrating workers exercising their right to free movement should not lose social security advantages guaranteed to them as this would discourage free movement.   

The limitations in Irish law on the persons to whom child benefit is payable contravenes Article 68a of the Regulations which refers to family benefit being provided to “the natural or legal person in fact maintaining the members of family”. 

  1. Humer, Case C-255/99: The decision of the CJEU in Humer entitles the child of a migrant worker to directly invoke the entitlement to a family benefit such as Irish child benefit and to apply for the benefit themselves,  without the intervention of the migrant worker.   

Decision of the High Court 

The High Court ultimately refused the application. 

The High Court found no reason to disapply s220 of the 2005 Act, in circumstances where the restrictions contained therein do not contravene the Applicant’s EU rights.  

It found that it did not have decide on any contradiction between Article 68a and Section 220 of the 2005 as the Applicant had not claimed that the person qualified in Irish law to claim child benefit had failed in their duty to support and maintain her.  It further found that the Regulations do not create an EU entitlement to child benefit above or different to the entitlements created by national law; nor do they create an entitlement of the child of a migrant worker to a benefit different to or in addition to those conferred by national law.  

In relation to the application of Humer, the Court found that the decision does not confer a right in EU law on the applicant as the child of a migrant worker who has exercised their right of free movement, to apply for Irish child benefit in their own capacity. The Court further noted that case law of the CJEU has consistently found that conditions for granting a family benefit were a matter for national law.  

Furthermore, the Court noted that in Humer, the CJEU found that the requirement to qualify for the benefit under national legislation was a precondition to the application of the Regulations. In the circumstances at hand, the Applicant did not qualify for child benefit under national legislation.  

The Court found that the Applicant’s application for arrears was refused on the basis that she was not a qualified person pursuant to section 220(1) of the 2005 Act. It had nothing to do with her status as a migrant worker, nor did the decision amount to discrimination  on grounds of her parents’ exercise of their right of free movement. It held that the basis of the DSP’s refusal of her application for arrears was created and is permitted by Irish law, and it was not in contravention of her rights under EU law.  

Date of final Decision: 27 June 2024 

Observations:  

This decision highlights the fact that the granting of family benefits is primary of national law.  

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable. 

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Case Report G0151: BM And JM (A Minor Suing By His Mother And Next Friend BM) v Chief Appeals Officer, Social Welfare Appeals Officer,  Minister For Social Protection, Ireland and The Attorney General [2024] IESC 51 

Title of Payment:  Carer’s Allowance  

Date of Final Decision: 12 November 2024 

Keywords: Carer’s Allowance; means test; reduced rate; classes of carers; constitutional challenge; Article 41.2 and the role of mothers in the home 

Organisation who represented the Claimant: N/A  

Casebase No. G0151 

Case Summary:  

This case concerned judicial review proceedings, where BM and JM (the “Applicants”) challenged the payment of Carer’s Allowance to BM at a reduced rate, pursuant to the Social Welfare Consolidation Act 2005 (the “2005 Act”).  

BM is the mother and carer of JM and has been a recipient the Carer’s Allowance since 2007. BM began to reside as a couple with JM’s father, which meant that her weekly means are assessed by reference to her own means and JM’s father’s means, so as to reduce the rate of Carer’s Allowance payable to her. The Applicants challenged the payment of Carer’s Allowance to BM at a reduced rate and asserted an entitlement to its payment at the full scheduled rate. BM asserted that having regard to JM’s profound dependence on her, and the corresponding commitment that being his full-time carer demands of her, it was highly unjust that she should receive anything less than the full rate of Carer’s Allowance. In particular, the allowance payable to her has been reduced by reference to her own means and not the means of her partner.   

The High Court dismissed the Applicants’ application and Hyland J held that the provisions of section 186(2) of the 2005 Act were permissive and conferred a power on the Minister rather than a duty to make regulations increasing the level of allowance payable.  

The High Court granted leave to appeal directly to the Supreme Court in respect of the following two issues:  

  1. Whether the Minister for Social Protection (the “Minister”) is under any obligation under section 186(1) and section 186(2) of the 2005 Act to make regulations which would dispense with the means-tested calculation of carer’s payment?  
  1. The extent (if any) to which Article 41.2 of the Constitution has any bearing on the proceedings and whether Hyland J was correct to state that Article 41.2 of the Constitution cannot be regarded as dictating the level at which the State must provide a carer’s allowance or otherwise mandating the making of regulations by the Minister under section 186(1) of the 2005 Act.  

Key Conclusions:  

  • The entitlement to Carer’s Allowance is subject to reduction (or exclusion) on the basis of a uniformly applicable prescribed means test.  
  • The Minister has a power but is not under any duty to make regulations to provide for two classes of Carer for the purposes of means testing of Carer’s Allowance under Chapter 8 of the 2005 Act.  
  • With respect of Article 41.2 of the Constitution, significant financial support is already being provided to BM and JM. The payment of a reduced rate of Carer’s Allowance to BM does not engage Article 41.2 which does not preclude the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long-term care to a profoundly dependent child in the home. It does not require that a sub-set of carers be treated preferentially or be subject to more favourable rules than other carers.  

Relevant Legislation: 

  • The Social Welfare (Consolidation) Act 2005, namely Chapter 8 of the 2005 Act; section 186(1) and section 186 (2) 
  • Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (SI 142/2007) 
  • Article 41.2.2 of the Constitution  

Key Arguments:   

The Applicant argued:  

  1. The Minister acted unlawfully in failing to make regulations under section 186(2) of the 2005 Act, which would (or might) provide for payment of Carer’s Allowance at the scheduled rate to BM and other similarly situated persons.  

Section 186(2) clearly contemplates that there might be a category of recipients who ought to receive payment of Carer’s Allowance at the full rate, irrespective of means, and provides the Minister with power to make regulations to that effect. The ‘class of classes of person’ are carers whose caring commitment significantly exceeds 35 hours per week, who face a life-long care commitment and who, as a result, have no prospect of ever being in the position to take up employment.  

  1. Payment of a reduced rate of Carer’s Allowance to BM is inconsistent with the State’s obligations under Article 41.2 of the Constitution. Article 41.2  provides that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home” 

The Respondents argued that what is now section 186(2)(b) of the 2005 Act was enacted so as to enable the Minister to make regulations addressing any difficulties that may arise in the transition from the previous regime, the Prescribed Relatives Allowance (PRA), which was not means tested.  

Decision of the Supreme Court:  

Issue 1  

The Supreme Court held that the Applicants’ contention that section 186(2) of the 2005 Act requires the Minister to make regulations the effect of which would be to provide for two classes of carer was unpersuasive. On the face of section 186(2), the Minister had been given a broad and largely unbounded power to dispense with and/or modify the application of statutory rules relating to the means test for Carer’s Allowance, for the benefit of an unspecified class or classes of carer. The Court held that the Minister has a power, but is not under any duty, to make regulations providing for the matters in section 186(2).  

The Supreme Court acknowledged the remedial nature of the 2005 Act, so as to encourage and support the provision of essential care, in a residential setting, to persons having such a disability as to require full-time care and attention. However, it was held that recognition of the 2005 Act as a remedial statute does not alter the interpretative exercise that the Court must undertake.  

It was noted that the use of the word “may” in section 186(2) of the 2005 Act could indicate that the power is truly discretionary rather than mandatory in character. The Court held that the wider statutory context does not provide any support for the Applicants’ contention that section 186(2) should impose a mandatory obligation on the Minister. It was noted that the Oireachtas has in Chapter 8 set out a detailed scheme for the payment of Carer’s Allowance, and that it would not appear to make any sense for the Oireachtas simultaneously to legislate to impose a duty on the Minster to make regulations departing from that carefully delineated statutory scheme  by dispensing with or relaxing the application of the rules relating to means. The Court agreed with Hyland J’s conclusion that the reference to “may” in section 186(2) is “truly permissive and confers a power on the Minister rather than imposing a duty”.   

Issue 2 

It was held that nothing in Article 41.2 of the Constitution precludes the application of a generally applicable means test to carers such as BM, i.e. mothers providing full-time, long term care to a profoundly dependent child in the home, or requires that sub-set of carers be treated preferentially or to be subject to more favourable rules than other carers (as would be the case if the general means testing regime did not apply, or apply in the same way, to them.  

Collins J held that it appears that Article 41.2 has generally been understood to apply to the marital family only, which Woulfe J expressed the view in his concurring judgement. It was held that no court has ever held that Article 41.2 of the Constitution extends to a legally enforceable duty to provide financial support to mothers in respect of their work in the home. It was held that BM has not been obliged to work outside the home and instead she has been and is being supported in staying at home to care for JM.  

Date of final Decision: 12 November 2024 

Observations: 

The judgement provides clarity on the entitlement to Carer’s Allowance under the 2005 Act. The rate of Carer’s Allowance payable will continue to be calculated using a uniformly applied means test, as prescribed by statute (and set out 2005 Act and the related regulations). The Minister is not permitted to derogate from the Carer’s Allowance rates prescribed by statute despite the full-time demands that carers may face.   

The effect of Article 41.2.2 of the Constitution simply requires that the State through its policies and laws seeks to support the rights of mothers, as a class, not to be obliged to work outside the home. It does not commit the State to the provision of any particular form or level of support or giving individual mothers any legally enforceable right to support from the State.  

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable. 

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Case Report G0147: NL v Minister for Social Protection 2024

Title of Payment: Disability Allowance

Date of Final Decision: 28 June 2024

Keywords: Appeal on a point of law, Disability Allowance; medical evidence; adequacy of reasons; insufficient explanation; inadequately reasoned; error in law; unduly restrictive interpretation; burden of proof; appropriate weight not afforded.

Organisation who represented the Claimant: n/a

Casebase no: G0147

Case Summary:

This case concerned an appeal on a point of law under section 327 of the Social Welfare Consolidation Act 2005 (the “2005 Act”) relating to an Appeal Officers decision to disallow an application to revise an appeal on the applicant’s claim for Disability Allowance (“DA”). The application was refused on the basis that the applicant did not establish that he was substantially restricted in undertaking suitable employment due to the severity of his medical condition.

The appeal was bought on behalf of a young man, who was born in 2005 and has several diagnoses, including Autism Spectrum Disorder, ADHD and type 1 diabetes. His mother’s affidavit reports that these diagnoses affect the applicant’s day-to-day life including his mental health and behaviour, and that he requires continual care and attention.

The Applicant’s mother is his full-time carer and she is in receipt of carer’s allowance. Shortly before the Applicant’s sixteenth birthday, he applied for DA, at which point his mother’s domiciliary care allowance would cease.

An opinion of a Medical Advisor was sought, and the Medical Advisor indicated the applicant was not substantially restricted in undertaking employment for a 12-month period. Shortly thereafter, the Deciding Officer refused the application for DA, on the basis that he did not meet the criteria. The Deciding Officer stated that although the medical evidence showed a level of incapacity, it did not show substantial restriction such that the applicant was restricted from taking up training.

The Applicant’smother appealed the decision to the Chief Appeals Officer, requesting that the matter be revised. This appeal was disallowed, with the Appeals Officer noting that the report in relation to the Applicant’s disability was carried out when he was a child and did not reflect his current suitability for employment.

Solicitors for the Applicant wrote to the Chief Appeals Officer enclosing further evidence in respect of the Applicant’s circumstances, requesting that the matter be revised pursuant to section 317 of the 2005 Act. It was argued that where carer’s allowance is provided, there should be an inference that the criteria for DA are met and a similar inference should be drawn from the fact that the Applicant  was enrolled in a special education school. Supporting material was provided, including a GP letter and a letter from the Applicant’s school. The appeal was unsuccessful.

Following this, an application to the High Court under section 327 of the 2005 Act was made.

Relevant Legislation:

  • The Social Welfare Consolidation Act 2005
  • Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (S.I. No. 142/2007).

Key Arguments:

The Applicant’s arguments included:

  1. That the Appeals Officer erred in law by misapplying the relevant statutory test. This was on the basis that some paragraphs of the decision the Appeals Officer used the phrase “seeking employment” rather than the words “undertaking employment”, which is the language used in section 210 of the 2005 Act.
  2. That the Appeals Officer was unduly restrictive in the interpretation or application of the concept of ‘substantial restriction’. The Applicant argued that the Appeals Officer did not identify or make a finding on the nature of the employment which would be suited to the Applicant.
  3. That the Appeals Officer applied the incorrect burden of proof, did not afford appropriate weight to the Applicant’s evidence, or made errors of fact. The Applicant asserted that there was prima facie evidence before the Appeals Officer that the Applicant met the criteria for DA. The Applicant also argued that the Appeals Officer should have concluded that the appellant was entitled to DA because his mother was in receipt of carer’s allowance.
  4. The decision was unreasonable and/or inadequately reasoned and they disregarded the evidence that the Applicant’s mother was in receipt of carer’s allowance in respect of the Applicant, which should have been a significant factor in meeting the criteria for DA.

The Applicant also argued that the test in section 210, if read in conjunction with article 13 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations (the “2007 Regulations”), meant that the Applicant simply had to show that they suffered from a specified disability in order to establish that they should be regarded as being substantially restricted in undertaking suitable employment. This was not an argument that had been made to the Deciding Officer or Appeals Officer and was introduced for the first time during the proceedings.

The Respondents’ main argument was that the onus was on the Applicant to establish their entitlement to a payment and produce relevant evidence. They submitted that having carefully reviewed all of the evidence provided for review, the Applicant did not satisfy the requirements of the legislative test for DA.

Decision of the High Court:

The High Court refused the statutory appeal.

Insufficient explanation:

This argument was not accepted by the High Court, with that the duty to give reasons does not extend to a requirement to explain why he preferred certain submissions over other submissions.

The Court found that the reasons for the decisions were abundantly clear. The Court noted that the educational psychology report relied on by the appellant was “quite historic” and “appeared to have been prepared for a separate purpose”, that being assisting with transition to secondary school.

The Court ultimately found that appeal decision accurately summarised the information submitted, the earlier decisions, and the additional detail that had been provided. On this basis, the decision was “adequately reasoned, and the appellant and his representatives ought to have been in a position to understand in general terms why the decision was made”.

Inadequately reasoned:

The Court did not agree that the decision was inadequately reasoned. The Court noted that the section 317 process requires the Appeals Officer to revise the earlier decision where it appears that the decision was erroneous which involves a consideration of matters at the time when that decision was made. Thus, the task of the Appeals Officer was to decide if the new evidence or new facts led to a finding that the original decision was erroneous.

The Court highlighted that at any stage in this process, it was open to the Applicant and his representatives to have obtained a fresh medical or other professional report to meet the section 210 criteria, and that this was not done. The Court noted that the Appeals Officer was instead invited to infer from the submitted evidence that the criteria was met.

Error in law

The argument that the Appeals Officer erred in law by applying the wrong statutory test was rejected. The Court noted the error and stated that “it is extremely important that care is taken by decision makers to ensure that the language used is accurate”. However, the error amounted to a mere misstatement that does not affect the validity of the decision. The Court considered the decision as a whole and deduced that the Appeals Officer was directing her efforts towards the correct test.

Unduly restrictive interpretation

The Court rejected the argument that the Appeals Officer was unduly restrictive in the application of the concept of “substantial restriction’”. The Applicant had argued that the Appeals Officer had attached inappropriate weight to a GP comment that the Applicant was suitable for working or training for rehabilitative purposes.

Noting that this appeal is concerned with the decision on the application under section 317 of the 2005 Act, the Court pointed out that there are clear parameters to that process and the revision decision did not attach any weight to the GP observation in question.

The Court also found that the Appeals Officer was not obliged “to maintain catalogues of potential employment scenarios for persons of differing ages, experiences and qualifications against which an applicant’s application can be analysed”.

Burden of proof

The Court found that: “to be challenged successfully, the treatment of the evidence by the Appeals Officer must result in findings unsupported by the evidence or where they are findings that no reasonable decision maker could make”.  The Court further emphasised that “the decision makers are entitled to some level of deference on their treatment of factual matters within their area of expertise” and was ultimately satisfied that the Appeals Officer’s finding was based on the evidence.

The Court rejected the arguments made in respect of Article 137 on the basis that the Applicant’s proposed interpretation would involve the subordinate legislation amending section 210 of the 2005 Act of 2005, by removing the requirement that the applicant establish that they are substantially restricted in undertaking suitable employment. The Court stated that this would lead to “an absurd or anomalous” result and would be plainly unlawful having regard to Article 15 of the Constitution. The Court interested article 317 as attempting to define or describe a “specified disability”.

Appropriate weight not afforded:

The Court disagreed with the argument that the evidence was not weighted correctly, finding that if the Appeals Officer simply proceeded on the basis that the allowance must be given if there was some evidence that an Applicant was substantially restricted, it would transform their function from one which involves engagement with the evident to “something approaching a rubber-stamping exercise”.

The Court further rejected the argument that the Appeals Officer should have concluded that the Applicant was entitled to DA because his mother was in receipt of carer’s allowance. The Court noted that the 2005 Act makes it very clear that each form of social assistance is separate from the other. The Court noted that it was open to the Oireachtas to adopt a more holistic approach to benefits, and this was not done. He further noted that the test for the carer’s allowance versus the test for DA are different, intended to be used by different applicants involving different criteria, and addressing different needs. On this basis, entitlement to carer’s allowance is not a relevant factor to consider.

The Court rejected the argument that the decision was irrational and unreasonable.

Date of final Decision: 28 June 2024

Observations:

The decision provides a helpful consideration of the eligibility criteria for DA, and highlights the High Court’s willingness to defer to the Appeals Officer on their area of expertise in respect of interpretation of the facts. It also highlights the importance of submitting up to date and directly relevant evidence in support of any application for DA.  Furthermore, regard should also be had to the High Court’s clear statement that entitlement to carer’s allowance is not a relevant factor in the context of an application for DA.

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable.

For more information, contact us at:

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Case Report G0145: Lordan v Minister for Social Protection Ireland and the Attorney General (Respondents) and The Irish Human Rights and Equality Commission (Notice Party).

Title of Payment: Disability Allowance

Date of Final Decision: 9 July 2024

Keywords: Disability Allowance; judicial review; constitutional challenge; ineligibility during period of incarceration

Organisation who represented the Claimant:  N/A

Casebase no: G0145

Case Summary:

The applicant, who was in receipt of a disability allowance from the Minister for Social Protection (the “Minister”), sought judicial review against the decision of the Minister to suspend disability allowance payments to him during various periods of time when he was lawfully imprisoned. Despite having previously met the criteria for receipt of disability allowance, the Minister was not satisfied that the applicant continued to meet the criteria as out in s. 210(1)(ba) and (bb) of the Social Welfare Consolidation Act 2005 (the “2005 Act”) during his periods of incarceration.

The applicant also sought the following:

  1. a declaration of unconstitutionality in relation to s. 210(1)(ba) and (bb) of the 2005 Act on the basis (1) it involves non-judicial punishment contrary to Articles 34 and 38 of the Constitution, and (2) it treated the applicant unequally contrary to Article 40.1;
  1. a declaration pursuant to s. 5 of the European Convention of Human Rights Act 2003 that s.210(1) treated him contrary to the European Convention of Human Rights (the “Convention”) as the disability allowance must be administered without discrimination on grounds identified in Article 14 of the Convention; and
  1. declaratory relief that he is entitled to reinstatement of his disability allowance following his release from prison.

Disability Allowance

The High Court referred to the eligibility requirements of s. 210(1) of the 2005 Act, which state that a person:

(a)          who has attained the age of 16 years but has not attained pensionable age;

(b)          who is by reason of a specified disability substantially restricted in undertaking  employment of a kind which, if the person was not suffering from that disability would be suited to that person’s age, experience and qualifications, whether or not the person is availing of a service for the training of disabled persons under section 68 of the Heath Act 1970;

(ba)        subject to subsection (10), the reason for whose substantial restriction in  undertaking suitable employment is as a direct result of the person concerned being incapable of work and for no other reason;

(bb)        who, were if not for the substantial restriction would be available to work in insurable employment or insurable self-employment; and

(c)           whose weekly means, subject to subsection (2), do not exceed the amount of disability allowance (including any increases of that allowance) which would be payable to the person if that person had no means.

Whilst not challenged by the application, the High Court mentioned s.249 of the 2005 Act which provides for the automatic disqualification of certain persons from certain benefits. In particular, s.249(6)(b) states that a person shall be disqualified for receipt of jobseeker’s allowance, pre-retirement allowance, supplementary welfare allowance, disability allowance or farm assist (including any increase in such allowance or assistance) while he or she is undergoing penal servitude, imprisonment or detention in legal custody.

Burden of Proof

The applicant relied heavily on the decision of the Supreme Court in P.C. v Minister for Social Protection, which concerned the disqualification pursuant to s.249(1) of the 2005 Act of a prisoner from payment of State Pension Contributory (“SPC”), in challenging the denial of disability allowance during his incarceration.

The Court noted that s.201(1) requires an applicant for disability allowance, along with a number of other working age social welfare payments, to establish that they have a disability as a result of which, and for no other reason, they are restricted in undertaking suitable employment in addition to their disability. Once the applicant was imprisoned, he no longer qualified as his disability was not the only reason for his restriction in undertaking suitable employment. The applicant’s incarceration restricted him from undertaking suitable employment, in addition to his disability, thereby rendering him fundamentally ineligible for disability allowance. Therefore, once he was sent to prison he no longer qualified for the allowance as his disability was not the only reason for his restriction in undertaking suitable employment.  

The Court further distinguished P.C. on the basis of the legislative history of the provisions relied upon in that case, and the means-tested nature of the disability allowance versus the contributory nature of the SPC in rejecting the applicant’s claim.

Constitutional Equality

To ground an Article 40.1 constitutional right to equal treatment claim, the applicant had to show that they were in a relevant comparable situation to that of their chosen comparator. The applicant centred his equality argument on the differing treatment of (1) a recipient of disability allowance who is no longer eligible for payment pursuant to s.210(1) due to their imprisonment and unavailability for suitable work, as compared to (2) a recipient of disability allowance who is detained for treatment pursuant to various legislative provisions, namely s.249(1A) of the 2005 Act, which allows a person who is “detained for treatment” to retain their disability allowance.

The Court drew a distinction between the two situations, noting that both disabled persons are detained but on different legal bases and are, therefore, in very different positions. The person detained for treatment is eligible for payment of disability allowance as their disability rendered them unable to undertake suitable employment. The fact that they are subsequently detained for treatment does not give rise to any new or additional reason why they are unable to undertake employment. This is a different situation to the recipient of disability allowance who is now unable to undertake suitable employment due to their detention in prison, in addition to being unable to work due to their disability and is, therefore, deemed ineligible for disability allowance.

The Court re-iterated the test for unconstitutional inequality as developed by the Supreme Court in Donnelly v. Minister for Social Protection [2022] IESC 31 and as endorsed by the Supreme Court in O’Meara v. Minister for Social Protection [2024] IESC 1, namely “discrimination that is based on arbitrary, capricious or irrational considerations”, and concluded that the legislative distinction drawn between disabled convicted criminals and disabled persons detained for treatment is not capricious, irrational or perverse and therefore there was no basis for finding s.210(1) to be in breach of Article 40.1 of the Constitution.

Reinstatement of disability allowance upon release

The applicant also sought to challenge the requirement for him to reapply for disability allowance upon his release from prison. The Minister confirmed that a person who had been in receipt of disability allowance and who became ineligible due to being imprisoned, had to reapply for disability allowance upon their release. There is an operational exception for persons who spent less than six months in prison who do not have to reapply.

The Court confirmed the Minister is not required to provide an explanation for allowing a person who serves a prison sentence of less than six months to be removed from what would otherwise be a requirement for them to reapply for disability allowance. The applicant had sought a declaration that equated to asking the court to direct the Oireachtas on the amendment of existing legislation, which the court noted was not appropriate due to the constitutional separation of powers.

In rejecting the applicant’s claim, the Court concluded that the disability allowance was properly and lawfully stopped as soon as the applicant became ineligible in accordance with the statutory provisions. It is not unlawful for the Minister to require a disabled person who lost their disability allowance for which they had previously been found eligible due to being unavailable for work while in prison, to reapply for disability allowance upon their release from prison.  Neither is their anything unlawful in the Minister’s administrative arrangement that waives that requirement where a person has spent less than six months in prison.

The European Convention of Human Rights

The applicant further claimed that his treatment interfered with his convention rights including his property rights and, as a disabled person, his right to protection as a member of “other status” pursuant to Article 14.

The applicant relied heavily on the dissenting decision of the European Court of Human Rights (the “ECtHR”) in Belli and Arquier Martinez v. Switzerland (App. No. 65550/13, 11 December 2018) which condemned the disentitlement of a disability payment to a person without a permanent address in Switzerland as unlawful discriminatory treatment according to criteria irrelevant to their disability. The majority decision however held there was no violation of Article 14 and upheld the impugned treatment. A similar decision was reached in P.C. v. Ireland (App. No. 26922/10, 1 September 2022) which was a case taken against the Irish State in the ECtHR in relation to the refusal by the Supreme Court to restore payment of a person’s full pension during a period of incarceration as convicted prisoners were not in a relevant similar position to persons detained for treatment of mental illness.

The court ultimately rejected this claim as the applicant’s case was at variance with the clear jurisprudence of the European Court of Human Rights.

Key Conclusions: The applicant was ultimately unsuccessful in all of his applications, and on all grounds. The Court was clear that there was no ambiguity in the refusal of the applicant’s application. In making her decision, the Court reiterated the fundamental fact that the applicant’s ineligibility was because his incarceration restricted him in undertaking suitable employment in addition to his disability, thereby clearly making him ineligible under Section 210 of the 2005 Act.

Relevant Legislation:

  • Social Welfare Consolidation Act 2005
  • Article 14 European Convention of Human Rights

Key Arguments:

The applicant’s fundamental argument was that their disqualification from disability allowance under the 2005 Act while imprisoned was unlawful.

Secondary arguments the applicant made were:

  • A person who has served six months or more of imprisonment must reapply for disability allowance, whereas a person who as served less than six months of imprisonment before release is automatically put back on disability allowance on their release – the applicant contended this differing treatment was in breach of principles of constitutional equality; and
  • That his treatment interfered with his convention rights, including his property rights and as a disabled person, his right to protection as a member of “other status” pursuant to Article 14 of the Convention.

The respondent’s response to the applicant’s fundamental argument was that the applicant clearly did not meet the eligibility requirements under s.210 of the 2005 Act, namely that to be eligible the person must (1) have a disability, and (2) they would be able to undertake suitable work were it not for their disability. Due to the applicant’s imprisonment, he was unable to work for a reason other than his disability, and thus clearly did not meet the eligibility criteria. Additionally, under s.249 of the 2005 Act, it clearly states that a person shall be disqualified from disability allowance where they are “undergoing imprisonment or detention in legal custody”.

With respect to the applicant’s secondary arguments:

  • The respondent noted that the differing treatment of parties who had been imprisoned for less than six months prior to release, to parties who had been imprisoned for longer than six months with respect to the automatic renewal of their disability allowance, was a matter for the Oireachtas, and thus due to the separation of powers would be inappropriate for the court to compel any changes with respect to this differing treatment;
  • With respect to the applicant’s argument on ECHR grounds, the respondent stated that the applicant’s case is at variance with the clear jurisprudence of the Strasbourg court.

Decision of the High Court:

The High Court ultimately refused the application.

Date of final Decision:

9 July 2024.

Observations:

As noted above, the essence of the decision lay in a clear ineligibility on the part of the applicant to receive disability allowance under s.210 of the 2005 Act. A fundamental plank of the test set out in s.210 of the 2005 Act is that for a person to be eligible for disability allowance they would have to be able to undertake suitable work were it not for their disability. As the applicant was imprisoned it was clear that they would therefore not be eligible under the criteria set out in s.210, and in addition, s.249 of the 2005 Act, also clearly states that a person who is undergoing imprisonment or detention in legal custody is disqualified.

The other arguments made by the applicant are dealt with relatively swiftly by the Court, with dismissals of the potential breach of Constitutional Equality on the grounds of differing treatment and no comparator between the applicant’s case and the decision of the Supreme Court in P.C. (on which grounds the applicant had based his claim). Similarly, claims of differing treatment on reinstatement of disability allowance on release are dismissed with on the grounds of separation of powers, and any potential ECHR case dismissed on the ground of clear variance from jurisprudence of the Strasbourg court. In sum,  the Court is clear that the application appears to be relatively groundless.

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable.

For more information, contact us at:

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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:

  1. 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.
  2. 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.
  3. 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:

  1. it agreed that JSA qualified as ‘social assistance’ and not a payment to facilitate access to the labour market;
  2. 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;
  3. 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
  4.  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:

  1. 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;
  2. 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;
  3. 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

DISCLAIMER: In developing the content of the report, every effort has been made to ensure that the information provided is accurate and up-to-date. Community Law & Mediation (“CLM”) gives no guarantees or warranties concerning the accuracy, completeness or up-to-date nature of the information provided in the course notes and does not accept any liability arising from any errors or omissions. Errors or omissions brought to the notice of CLM will be investigated and amendments or corrections will be made as soon as practicable.

For more information, contact us at:

Community Law and Mediation Centre, Northside

Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

E:info@communitylawandmediation.ie  | W: www.communitylawandmediation.ie

T: 01 847 7804

Case Report G0130: ZK v Minister for Justice

Title of Payment: N/A

Date of Final Decision: 16 May 2022

Keywords: Oral Hearing; Procedural Safeguards; Fairness; Conflict in Factual Evidence; Credibility; Marriage of Convenience; EU Residency

Organisation who represented the Claimant: n/a

Casebase no: G0130

Case Summary:

In Z.K. v The Minister for Justice & Equality and Ireland and The Attorney General [2022] IEHC 278, Z.K. successfully challenged the decision of the Minister for Justice and Equality (the “Minister”) to revoke the grant to him of EU residency.


Z.K. was a Georgian national who married a Lithuanian national (Z.H.) who had been residing in Dublin since 2006.


The couple said they met on a dating app around May 2016 while Z.K. was still in Georgia. In September 2016, Z.K. travelled to Ireland and, in February 2017, applied for international protection. He admitted the purpose of the application was to obtain a temporary permission to apply to marry. They married in March 2017. They provided evidence to vouch for the bona fides of the marriage.


In April 2017, Z.K. applied to the Minister for a residence card as the spouse of an EU national exercising her EU Treaty Rights in the State. The application was granted in December 2017.


The relationship became strained and, though the couple’s evidence was that they attempted to resolve their difficulties, they ceased living together around October 2018, albeit that there were references to this happening in October 2017 (which they indicated were mistaken). When, in 2019, Z.H. sought a new passport, they indicated that they had ceased living together.


In April 2019, the Minister wrote to set out concerns around the bona fides of the marriage and informed Z.K. of an intention to revoke his permission to reside in the State (the “Decision Letter”). Z.K.’s residence card was revoked in August 2019. Among the reasons given was that Z.K.’s marriage was a marriage of convenience contracted for the purpose of obtaining a derived right of free movement and residence under EU law. In reaching the decision, the Minister considered relevant that some of Z.K.’s wife’s post had continued to be sent to her mother’s residence (where she had previously resided). Further, some of her phone bills addressed to her marital residence were overlooked.


In September 2019, Z.K.’s solicitor requested a review of the decision on Form EU 4 and made representations on behalf of Z.K., also including a transcript of messages and third-party testimonials to vouch for the bona fides of the relationship. In January 2021 the Department prepared a recommendation submission which concluded that the marriage was never genuine.

On 1 February 2021, a letter (the “Review Letter”) upheld the decision to revoke Z.K.’s residence, stating that the decision had been taken because “the Minister was of the opinion that the documentation that you had provided in support of your application was false and misleading as to a material fact, particularly with respect to the EU citizen’s residence in the State”. On 2 February 2021, the Minister sent a letter seeking updated information from the applicants (a “Current Activity Letter”). In March 2021, Z.K. was informed the review decision remained unchanged.

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