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:
- 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”.
- 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.
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