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

Social Welfare Appeal G0112

Title of Payment: One Parent Family Payment

Date of Final Decision: 5 August 2020

Keywords: One Parent Family Payment; Means Test; Mortgage Repayments; Adequacy of Reasons; Arbitrariness; Equal Treatment of Similar Applicants; Precedent Decisions; Legislative Interpretation; Judicial Review; Regulation 142; Regulation 143.

Organisation who represented the Claimant: Citizens Information

Casebase No. G0112

 Case Summary:

This case is that of Deirdre Brennan v Minister for Employment Affairs and Social Protection [2018] No.76 J.R. It was heard with the case of Margaret Bracken v. Minister of Employment Affairs and Social Protection [2018] No.165 J.R (2020 IEHC 394). Casebase Report No. G0111 details the latter decision.

The case concerns a challenge to the decision by the Minister for Employment Affairs and Social Protection (the “Respondent”), when assessing the means of Ms Brennan (the “Applicant”) for the purposes of determining the amount of her One Parent Family Payment, to use the full value of monthly mortgage repayments made by her ex-partner.

The applicant was a nurse, working as a homemaker, who lived with her two young children in the home she had jointly bought with her ex-partner.  Her ex-partner met the mortgage payments (€1161.36 / month).

The Applicant applied for a One Parent Family Payment.  On 2 February 2015 the Deciding Officer determined that the full mortgage repayments being made by the Applicant’s ex-husband should be taken into account in assessing the means of the applicant.  On review, this decision was upheld.  (This meant that the applicant was entitled to receive a One Parent Family Payment of €190 / week.)

The Applicant appealed the Deciding Officer’s Decision to the Social Welfare Appeals Office.  In her appeal, she relied on a previous decision of the Chief Appeals Officer dated 31 July 2015 (the “Precedent Decision”).  The Precedent Decision concerned a similar applicant in whose case only 50% of the mortgage repayment was taken into account when assessing her means.  The Precedent Decision included the statement that “given the joint ownership of the property and liability of both parties to discharge the debts/bills on the property it is reasonable that half the mortgage and associated payments should be disregarded.”  The Applicant maintained that, as her house was in joint names, her ex-partner derived a benefit from the mortgage payments, and so only half of the payments should be used in the assessment.

On 26 July 2017 the Social Welfare Appeals Officer dismissed the applicant’s appeal.  Notwithstanding the Precedent Decision, the Social Welfare Appeals Officer considered that: “In this case the legislation … provides for the assessment of housing costs paid by the liable relative.  I have sympathy with the arguments put forward …  However, in my view the legislation does not allow the payments being made to be qualified in such a way as to discount from the means assessment the benefit which the ex-partner derives from those payments.  In the circumstances the full value of the mortgage payments being made must be used in assessing the appellant’s means.”

The Applicant appealed the dismissal of her appeal to the Chief Appeals Officer.  On 7 November 2017 the Chief Appeal Officer dismissed this appeal.  The Chief Appeals Officer stated: “While previous decisions do not create precedents the appeals office endeavours to be consistent in its decision making. Having reviewed the decision that I am now referred to I am of the view that while I gave the benefit of a more favourable calculation in that particular case there was in fact no precise rule which allowed for that more favourable treatment.  While that decision was made by me in good faith I do not consider that in the absence of a specific rule in the governing legislation permitting the application of a more favourable calculation it would be appropriate for me to apply the same consideration in Ms. Brennan’s case”. 

The applicant applied to the High Court for judicial review of the Chief Appeal Officer’s decision.  The issue for the High Court was “one of statutory construction and 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” and whether the decision of the respondent taken on review was taken within the proper meaning of Regulation 142 of the 2007 Regulations”.

The High Court dismissed the judicial appeal, finding that the Respondent had correctly interpreted the statute.

Key conclusions:

When assessing an applicant’s means for the purpose of calculating a One Parent Family Payment, the Department for Employment Affairs and Social Protection is entitled to take into account mortgage repayments made by a liable relative.  Legislation provides for a portion of the mortgage repayments to be disregarded (at the relevant time, €4952) and the the remainder halved.  However, the legislation does not provide, as the applicant contended, that only half the mortgage repayments should be used in the assessment of means on the basis that the liable relative making the repayments is a joint owner and therefore deriving a benefit from making the repayments.

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.

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.

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.