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

Date of Final Decision: 22 August 2025

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

Organisation who represented the Claimant: N/A

Casebase No. Case G0158

Background

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

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

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

Relevant Legislation

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

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

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

Key Arguments:

The applicant argued that:

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

The respondent argued:

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

Decision of the High Court:

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

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

Key Conclusions:

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

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

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

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

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

Date of Final Decision: 22 August 2025

Observations:

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

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

For more information, contact us at:

Community Law & Mediation, Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

E: info@communitylawandmediation.ie | W: www.communitylawandmediation.ie | T: 01 847 7804

Case Report G0157 – Rent Supplement – Overpayment

Date of Final Decision: 24 July 2025

Keywords: Rent Supplement – Overpayment – Appeal to Social Welfare Appeals Office – lack of fair procedures – deductions without formal notification

Organisation who represented the Claimant: Community Law & Mediation

Casebase No. Case G0157

Factual Background:

This case relates to an appeal brought by CLM on behalf of a client to the Social Welfare Appeals Office (SWAO) of the decision of the Deciding Officer of the Department of Social Protection (“DSP”) attributing an overpayment of rent supplement to our client.

Rent Supplement

Our client had been in receipt of rent supplement for the duration of his tenancy in private rented accommodation for approximately three years. The rent supplement was always paid directly into his landlord’s bank account. Following receipt of an eviction notice, our client and his family moved into a local authority tenancy,

Our client was no longer eligible for rent supplement upon moving into social housing. However, unbeknownst to our client, rent supplement continued to be paid directly into his landlord’s bank account.

Our client first became aware of this a number of months later when he received a letter from the DSP stating that his rent supplement claim was under review. He confirmed to the DSP that he had moved out of the property, and that the rent supplement was always paid directly to his former landlord. He received no response to this correspondence.

Alleged Overpayment

Our client subsequently received correspondence from the Central Debt Unit of the DSP, notifying him that he had been overpaid rent supplement. The DSP immediately commenced deductions from his other social welfare payment for this alleged overpayment.

CLM, on behalf of our client, wrote to both the Central Debt Unit and the DSP, highlighting that no formal decision on the alleged overpayment had been issued to our client, and requesting that the process of debt recovery be immediately suspended.

The Central Debt Unit agreed to suspend the debt recovery, and our client shortly thereafter received a formal decision notifying him of the alleged overpayment of rent supplement and providing him with the opportunity to submit an appeal to the SWAO.

CLM submitted an appeal to the SWAO.

Key Legislation:

Social Welfare (Consolidation) Act 2005, in particular section sections 301, 302, and 305 to 338
Social Welfare Act 2012
Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007
Operational Guidelines: Management of Customer Overpayments and Recovery of Customer Debt

Key Arguments:

The following arguments were made by CLM in the appeal on behalf of our client:

Lack of fair procedures: We highlighted that there was a fundamental lack of fair procedures, in circumstances where a formal decision was only issued after the DSP had commenced deductions for the alleged overpayment and only after CLM had made inquiries with the DSP on behalf of the appellant. We also highlighted that the formal decision did not specify or identify the basis for the decision or if fraud had been alleged against our client. This severely hampered our client’s ability to engage with an appeals process.
Error in decision: We argued that the revised decision erred in attributing the overpayment to our client, who had never received the payment and who was unaware that his former landlord continued to receive the rent supplement payments following the conclusion of the tenancy.
DSP on notice of change of circumstances: We further submitted that the DSP was on notice of the appellant’s change of circumstances, i.e. his change of address, from when the family first moved out, and that the DSP had failed to act within a reasonable timeframe on the basis of the information it had.

In this regard, we highlighted that our client had applied for, and received, a community welfare payment to cover the expenses associated with the family’s move to social housing. This payment was administered by the same office that administers rent supplement. Furthermore, the household had provided their updated address in subsequent applications for social welfare payments.

Our client’s circumstances: Finally, we highlighted our client’s extenuating circumstances, including the fact the family had been facing homelessness, our client suffers from persistent health issues and he has limited English.

Decision of the Social Welfare Appeals Office:

The Appeals Officer allowed the appeal in full, finding that the decision giving rise to the overpayment was erroneous and that our client was not liable for the overpayment.

The Appeals Officer found that the DSP was in possession of information that our client no longer lived in private rental accommodation, by virtue of his application for a community welfare payment to cover the move.

Furthermore, the Appeals Officer accepted that the process followed had breached our client’s right to fair procedure and natural justice. In this regard, the Appeal Officer highlighted:

that the DSP had raised the issue of the overpayment with the landlord directly, and it was only on foot of the landlord’s refusal to repay that they sought to recover the overpayment from our client; and

that our client had no knowledge of the continued payment of rent supplement to his landlord, and that he believed he had discharged his obligation to notify the DSP of his change of circumstances by applying for the community welfare payment.

the mitigating factor that our client did not benefit from the alleged overpayment, and was not aware of it.

Date of final Decision: 24 July 2025

Observations:

Overpayment:

There is a specific procedure set out in law which the DSP must follow when seeking to recover an overpayment from a claimant. This procedure necessitates that the DSP issue a formal revised decision or determination before proceeding to recover any debt. Failure to comply with such procedure risks breaching a claimant’s constitutional and natural justice rights.

For more information on overpayments, please see the following Casebase reports:

Where an individual does not benefit from an alleged overpayment and is not aware of the overpayment or could not have been aware of the overpayment, this may serve as a mitigating circumstance in their favour.

Change of circumstances:

A claimant is under an obligation to notify the DSP of a change of circumstances which affects their eligibility to the payment they are receiving. However, in certain circumstances, an appellant may seek to argue that the DSP is already in possession of sufficient information that informs them of this change in circumstances. This could, for example, be through the provision of information in the context of an application for another payment.

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

For more information contact us at:

Community Law & Mediation

Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

E: info@communitylawandmediation.ie | W: www.communitylawandmediation.ie | T: 01 847 7804

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

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

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

Casebase No. Case G0155

Background

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

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

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

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

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

Relevant Legislation:

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

Key Arguments:

The Applicant, LA, argued as follows:

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

The Respondent, the State, argued as followed:

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

Decision of the Court of Appeal:

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

Key Conclusions:

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

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

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

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

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

Date of final Decision: 5 March 2025

Observations:

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

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

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

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

For more information contact us at:

Community Law & Mediation, Northside Northside Civic Centre, Bunratty Road, Coolock, Dublin 17

E: info@communitylawandmediation.ie | W: www.communitylawandmediation.ie | T: 01 847 7804