Social Welfare Type: Disability Allowance

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

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

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

Casebase No. Case G0155

Background

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

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

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

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

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

Relevant Legislation:

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

Key Arguments:  

The Applicant, LA, argued as follows:

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

The Respondent, the State, argued as followed:

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

Decision of the Court of Appeal:

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

Key Conclusions:

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

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

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

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

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

Date of final Decision: 5 March 2025

Observations:

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

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

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

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

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 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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Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

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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 G0139: GV v Chief Appeals Officer (C-488 21)

Title of Payment: Disability Allowance

Date of Final Decision: 21 December 2023

Keywords: Preliminary Ruling; EU Citizenship Directive; Free Movement of Workers; Disability Allowance; Right to Reside; Dependant; Family Member; Beneficiaries; Unreasonable Burden

Organisation who represented the Claimant: KOD Lyons Solicitors

Casebase no: G0139

Case Summary:

By way of background, Casebase Report No. G0113 details the judicial review decision of the High Court in Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R. The Respondents appealed the  High Court ruling to the Court of Appeal, who stayed proceedings in order to submit a preliminary reference to the Courts of Justice of the European Union (“CJEU”) under Article 267 TFEU.

The dispute concerns a Romanian national, GV, who is the mother of AC, another Romanian national residing in Ireland with Irish citizenship by naturalisation, and the question of whether GV, as a direct dependent of AC, is entitled to the payment of disability allowance in Ireland.

This judgment is that of C-488/21 GV v Chief Appeals Officer, in which the Grand Chamber of the CJEU delivered a preliminary ruling on the questions referred to it by the Court of Appeal.

The following questions were referred to the CJEU:

(i) Is the derived right of residence of a direct relative in the ascending line of a Union citizen worker within the meaning of the EU Citizenship Directive conditional upon the continued dependency of that relative on the worker?

(ii) Does the EU Citizenship Directive prevent a host Member State from restricting access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of their dependency, where access to such payment would mean they are no longer dependent on the worker?

(iii) Does the EU Citizenship Directive prevent a host Member State from restricting such access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of their dependency, on the grounds that payment of the benefit will result in the individual concerned becoming an unreasonable burden on the social assistance system of the State?

Relevant Legislation:

  • Directive 2004/38/EC (“EU Citizenship Directive”), as implemented in Ireland by the European Communities (Free Movement of Persons) Regulations 2015;
  • Regulation (EC) No 883/2004;
  • Regulation (EU) No 492/2011;
  • Social Welfare Consolidation Act 2005.

Key Arguments:

The Minister for Employment Affairs and Social Protection (the “Minister”) argued:

  1. The concept of ‘family member’ within the EU Citizenship Directive includes the dependant direct relatives in the ascending line. Therefore, the parent of a Union citizen shall be a qualifying family member, and thus have a derived right to reside in the host Member State, for so long as they are dependent on the Union citizen.
  2. The EU Citizenship Directive requires that a Union citizen may reside in the State as long as they do not become an unreasonable burden on the social assistance system of the State.
  3. Once a Union citizen receives a social welfare benefit from the State, they: (a) cease to be dependent on their family member; and (b) become financially dependent on the social welfare system of that Member State. On that basis, their relationship of dependency on a family member ceases. Consequently, they fail to meet the requirements for a derived right of residence within the EU Citizenship Directive.

GV argued:

  1. The requirement under Irish law that access to a social welfare benefit by a ‘family member’ within the meaning of the EU Citizenship Directive be contingent upon that person not becoming an ‘unreasonable burden on the social assistance system of the State’ is inconsistent with EU law; and
  2. The position taken by the Minister amounts to a violation of GV’s right to equal treatment.

Decision of the Grand Chamber of the CJEU

The CJEU decided that the status of ‘dependent’ relative in the ascending line cannot be affected by the grant of a social assistance benefit in the host Member State. To decide otherwise would amount to accepting that the grant of such a benefit could result in the person concerned forfeiting the status of dependent family member and, consequently, justify the withdrawal of that benefit or even the loss of his or her right of residence. Such a solution would, in practice, preclude that dependent family member from claiming that benefit and would, for that reason, undermine the equal treatment accorded to the migrant worker.

Therefore EU law must be interpreted as precluding any national legislation of a Member State which allows for the refusal to grant a social welfare benefit to a direct relative who is dependent on an EU citizen worker at the time of making the application, or to withdraw their right to reside, on the grounds that  granting that benefit would have the effect that the family member in question would no longer be dependent on the worker and become an unreasonable burden on the social welfare system in that Member State.

Observations:

Now that the CJEU has clarified how the law in question is to be interpreted and applied by national courts, the Court of Appeal must consider the determination of the main proceedings in light of this binding clarification.

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Thematic Note G0120: Disability Allowance

Title of Payment: Disability Allowance

Date of Final Decision: SWAO Annual Reports 2009-2020

Keywords: Disability Allowance, Means Test, Habitual Residence, Substantially Restricted, Suitable Employment

Casebase no: G0120

Summary of the relevant law:

The criteria that a person (aged 16-66 years) must meet in order to qualify for receipt of Disability Allowance are that they are:

  1. suffering from an injury, disease, congenital deformity or physical or mental illness or defect which has continued or may reasonably be expected to continue for a period of at least a year and substantially restricted because of your disability from doing work that would be suitable for a person of your age, experience and qualifications;
  2. Of insufficient financial means; and
  3. Habitually resident in Ireland.
  1. Disability

Section 210 (1) (b)  of The Social Welfare (Consolidation) Act 2005 (as amended) (“2005 Act”) states that in order to obtain Disability Allowance, a person must by reason of a specified disability be 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.

  1. Means

Section 210 (1)(c) of the 2005 Act states that in order for a person to meet the means test for Disability Allowance, their weekly means cannot exceed the amount of Disability Allowance (including any increases of that allowance) which would be payable to the person.

  1. Habitual Residence

While habitual residence is not defined in Irish law, Section 246 of the 2005 Act provides guidance. Accordingly, determination of whether an individual is habitual resident is a two-stage process in Irish law. The first step involves establishing whether a person has the right to reside in accordance with EU law. The second step is a determination of whether a person is habitually resident with reference to the specific circumstances of their case, with a particular focus on the five factors outlined in Section 246 (4) of the 2005 Act, which are as follows:

  • length and continuity of residence in the State or in any other particular country;
  • length and purpose of any absence from the State;
  • nature and pattern of the person’s employment;
  • person’s main centre of interest; and
  • future intentions of the person concerned as they appear from all the circumstances.

Key grounds of appeals by appellants:

Key examples of thematic areas that individuals appealed decisions of the Appeals Officers under are as follows:

  • The interpretation of mental health issues, social issues and behavioural disorders with regards to meeting the threshold of causing an individual be “substantially restricted” from employment;
  • The interpretation of “suitable employment” should be a subjective assessment, based on the skills, experience and issues presently being faced by the particular appellant;
  • How minors/young adults are assessed, and the differing considerations that are required when assessing this demographic;
  • Overlapping conditions that are not sufficient on their own to substantially restrict an individual from employment, but the ability of the combined impact of the multiple issues to create a larger problem that prevents an individual from obtaining/retaining employment;
  • Change of medical circumstance or availability of medical evidence to support Disability Allowance claim;
  • The method by which means are calculated (E.g. consideration of household income, awards of damages, saving accounts with access limitations, inheritance, community employment scheme income, welfare payments from other countries etc.); and
  • Appealing decisions on habitual residence on a subjective and case-by-case fact-driven basis.

Observations on appeal outcomes:

At the outset, a key observation is that the increase in variety and intersectionality of the disabilities, illnesses and diseases that are being raised by appellants as meeting the threshold for substantially restrictions to employment. In recent years, issues such as gender dysphoria, eating disorders, alcoholism, social withdrawal etc. are being considered as having the potential to substantially restrict employment opportunities. Concerning intersectionality, most appeals involved individuals who were suffering from both physical and mental issues, which are often interlinked and correlative. The SWAO has shown a willingness to expand what is classified as a disability, and to consider the compounding impacts of different issues faced by an individual.

It is evident from the determinations that how an appellant presents themselves during the course of the appeal is extremely influential; their interactions, attitude, behaviours, communication, demeanour and movements during the hearing are often cited by the SWAO when  justifying a decision reached.

Alongside the considerations we would expect the SWAO to discuss when assessing an individual’s ability to work (E.g. qualifications, experience, home-life, language proficiency etc.), they also considered factors such as hobbies, interests, caring responsibilities, volunteering, friendships, participation in community life etc. when considering an appellant’s capability.

When considering what constituted “suitable employment” it appeared that for those with more serious disabilities, more difficult circumstances or who were older, the definition of “suitable employment” was narrower and more closely linked to their previous experience and training. Otherwise, the term “suitable employment” has been defined as “[applicable] to a wide variety of employment types and not just to the person’s usual or preferred type of work.”

With regards to the medical evidence cited in the Appeals, it was extremely rare that the opinion of the medical expert would not be key in the assessment of the severity of a disability, especially when activities were profiled and ranked by a GP/medical expert. Appellants that were unable to show a medical diagnosis/medical support letter to demonstrate the severity of their disability found it difficult to succeed.

The assessment of the disabilities of minors and young adults tended to be based on the individual’s need for supervision, behaviour at home/school and, most importantly, their forecasted ability to cope with entering third-level education/work place. It was also clarified that minors do not need to show an employment record with reference to the requirements for habitual residence.

With regards to habitual residence, determining whether an appellant’s centre of interest was in Ireland seemed to be largely based on the factual matrix of the appellant’s circumstances (i.e. a tailored application of the five factors listed in 246 (4) of the 2005 Act to the precise circumstances).

It was also shown that an appellant being on a residency permission that specifically precludes their right to obtain employment in Ireland (E.g. Stamp 2A permission) should not be the precluding factor for an individual seeking Disability Allowance.

With regards to the right to reside, several appeals were made by individuals who were dependent direct relatives of an EU worker. For example, 2019/318/62 Disability Allowance – Section 318 Review below. The relative in this case was refused Disability Allowance  as not deemed to have a right to reside if to become an unreasonable burden on the social assistance system of the State. Nevertheless see the High Court decision in Voican and Casebase Case Report G0113.

With regards to means, several appeals were made by individuals that were having their means assessed on a household basis, who were seeking to be assessed on an individual basis. The determinative factor here was whether the couple were in fact living as spouses (as opposed to a separated couple living at the same address).

The appeals on means-related grounds also clarified that income received from the awarding of damages, saving accounts with access limitations, inheritance and community employment schemes should all be considered when calculating an individual’s income. A recent case confirmed that, with regards to social security payments, benefits received from other Member State that are equivalent to Irish welfare payments should be excluded when assessing the appellant’s means.

 

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Social Welfare Appeal G0113

Title of Payment: Disability Allowance

Date of Final Decision: 29 May 2020

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

Organisation who represented the Claimant: KOD Lyons

Casebase No. G0113

 

Case Summary

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

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

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

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

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

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

Key Conclusions

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

[1] S.I. 548 of 2015

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Social Welfare Appeal G0111

Title of Payment: Disability Allowance

Date of Final Decision: 2020

Keywords: Disability Allowance; Means Test; Non-Cash Benefit; Mortgage Repayments; Legislative Interpretation; Equal Treatment of Similar Applicants; Precedent Decisions; Judicial Review; Regulation 142; Regulation 143

Organisation who represented the Claimant: Citizen’s Information

Casebase No. G0111

Case Summary:

This case is that of Margaret Bracken v. Minister of Employment Affairs and Social Protection [2018] No.165 J.R (2020 IEHC 394). It was heard with the case of Deirdre Brennan v Minister for Employment Affairs and Social Protection [2018] No.76 J.R. Casebase Report No. G0112 details the latter decision.

This case concerned an application to quash the respondent’s (the Minister for Employment Affairs and Social Protection’s) decision to take into account the applicant’s ex-partner’s mortgage repayments on the house in which the applicant resides when assessing the applicant’s means in the context of her application for disability allowance.

The applicant resides in a house which is in the sole name of her ex-partner, and on which her ex-partner pays a mortgage repayment in the amount of €647 each month. The applicant lives in the house with her son, who is also the child of her ex-partner. She pays no rent and her residency is not the subject of a tenancy agreement.

The applicant was granted disability allowance in August 2017, but in determining her means as part of this application, the respondent took into account the monthly mortgage repayment made by the applicant’s ex-partner. The applicant appealed this decision to the Social Welfare Appeals Office and in doing so relied in part on a previous decision of the Chief Appeals Officer in 2015, in which an applicant in similar circumstances had only 50% of the relevant mortgage repayment taken into account (the “Precedent Decision”). The Social Welfare Appeals Office refused the appeal in November 2017, which decision the applicant then sought to have reviewed by the Chief Appeals Officer. The Chief Appeals Officer subsequently refused to revise the decision of the Social Welfare Appeals Office, by way of a written decision issued on 21 December 2017. The applicant then sought to judicially review this refusal in the High Court.

Before the High Court, the applicant argued that she was not challenging the legislation but instead the respondent’s interpretation of the legislation, which she said was irrational and arbitrary. She argued that the respondent failed to treat similar applicants equally and this is demonstrative of a fixed and inflexible policy. Additionally, no adequate interpretation was provided by the respondent in relation to the difference between ‘housing costs’ and ‘net cash value’. The core issue was the proper interpretation of the phrase “the net cash value to the (applicant) of her annual housing costs actually incurred and paid by a liable relative insofar as the cash value exceeds €4,952 per annum” contained in Regulation 142 of the 2007 Regulations, and monthly mortgage payments do not come within the meaning of non-cash benefit.

The respondent argued that the statutory provisions allow both cash income and any non-cash benefits which a claimant may reasonably be expected to receive during the year, whether as contributions to the expenses of the household or otherwise to be taken into account. Non-cash benefits include the net cash value to the relevant claimant of his or her annual housing costs actually incurred and paid by a liable relative. Mortgage repayments do come within the meaning of non-cash benefit.

The Court’s decision focused on the question of statutory interpretation and ultimately found that giving the contentious words their ordinary meaning, the respondent had correctly interpreted the legislation and mortgage repayments come within the definition of housing costs and the meaning of non-cash benefits. The Court further found that adequate and understandable reasons had been provided by the Respondent.

The Court therefore refused the applicant’s application to quash the respondent’s decision.

Key conclusions:

Mortgage repayments come within definition of ‘housing costs’ and within the meaning of a non-cash benefit, and will be taken into account when determining a claimant’s means.

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Social Welfare Appeal G0110

This is one of two judgments delivered by the Supreme Court in the case of Petecel concerning the refusal of an application for Disability Allowance under the Social Welfare Consolidation Act 2005. This particular judgment deals with the substantive issue of the legal classification of Disability Allowance, as opposed to the appellant’s entitlement to seek judicial review. The procedural issue is addressed in the earlier judgment and is detailed in Casebase Report No. G0109.

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

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

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

When the matter came before the Supreme Court, and having determined the procedural issue, O’Malley J. invited the parties to make further written submissions on the classification issue. She was particularly interested in two issues, namely the “rehabilitative work” aspect of the earnings disregard that applied in the means test for Disability Allowance and the relevant disqualification criteria. O’Malley J. was of the view that there were elements of sections 210 and 212 of the 2005 Act that possibly indicated there may have been a medical purpose to the overall conditions of eligibility attached to Disability Allowance at the time of Mr. Petecel’s claim and sought supplemental submissions on that basis. The Supreme Court concluded that Disability Allowance was a form of social assistance payment properly classified as a non-exportable “special non-contributory cash payment” within the meaning of Article 70(2) of Regulation 883/2004. The payment was not linked to any medical purpose. Accordingly, Mr. Petecel was not entitled to Disability Allowance and his appeal was dismissed.

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Social Welfare Appeal G0109

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

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

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

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

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

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

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

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Social Welfare Appeal G0055

This case relates to the Appellant’s Disability Allowance (DA) claim.  The Appellant encountered a number of difficulties at various stages in relation to this claim, and each one will be looked at in turn.

  1. Appeal
  2. Review and decision to suspend DA claim
  3. Arrears and Overpayment Calculation

The Appellant represented himself at the Appeal, and CLM represented the claimant for the two latter issues. However, the Appellant’s original application, subsequent refusal, review and appeal, informs the background to the two latter issues and so will be discussed first.

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