The Supreme Court is to hear further submissions in a seriously ill Romanian man's case over whether disability allowance can be paid by the Department of Social Protection to him in his native country.
The man, who lived in Ireland legally for some three years before being diagnosed with Multiple Sclerosis, has challenged Ireland's refusal to pay him disability benefit since he returned to Romania.
The further submissions will focus on his claim that disability allowance here is incorrectly categorised under a 2004 EC regulation as a special non-contributory cash benefit rather than a sickness benefit.
The 2004 regulation deals with the circumstances in which certain types of social security payments may be exportable.
If classified as a sickness benefit, the disability allowance would be exportable and payable to the man in Romania where he is cared for by his mother.
The categorisation validity issue was not addressed by the High Court because that court, in a decision upheld by the Court of Appeal, found he was not entitled to judicial review of the Department's refusal when he had not fully used the appeal procedures under the Social Welfare Consolidation Act 2005.
The Supreme Court agreed to hear an appeal arising from the lower courts’ decisions. Giving the five judge court’s judgment this week, Ms Justice Iseult O’Malley ruled the man was entitled to pursue judicial review.
The lack of jurisdiction within the social welfare appeals process to grant any form of remedy in respect of the allegedly invalid categorisation of disability allowance gave rise to an exception to the general obligation to exhaust statutory remedies before seeking judicial review, she said.
The next issue concerned how the Supreme Court should proceed, she said.
If the Supreme Court was to find no doubt about the propriety of the categorisation of disability allowance as a special non-contributory benefit, nothing would be gained from sending the matter back for a full High Court hearing.
If the validity of the categorisation was “not entirely clear”, the Supreme Court could either remit the matter to the High Court so relevant findings of fact could be made or refer a question to the Court of Justice of the EU.
While the definition of the allowance in section 210 of the 2005 Act certainly seems to be within the concept of social assistance, two aspects are “of concern”, she said.
The first was, when the man applied in 2016, it was possible to work and earn up to a prescribed amount without losing entitlement but only if the work was considered rehabilitative in nature.
That restriction was removed in 2018 but, while in force, it might have been seen as strengthening arguments of a medical or rehabilitative purpose to the allowance as opposed to a sole purpose of maintaining a subsistence level of income.
The second matter was the disqualification criteria which could be regarded as ongoing conditions of entitlement and “clearly geared” towards improving the health and quality of life of the claimant.
Having regard to those two aspects, and case law, there may be some possibility the CJEU would find, at the relevant time, there was “a medical purpose” to the overall conditions of eligibility.
The court wanted further submissions on those issues by reference to the jurisprudence of the CJEU, she said.
The man worked in Ireland from May 2008 until July 2011 after which he enrolled in a college course from which he was withdrawn in October 2011.
He went to Romania the following month for medical treatment and was diagnosed with MS while there.
He came back to Ireland but, because he could not access medical treatment here, returned to Romania in April 2012. His condition deteriorated and he now requires 24-hour care.
